High Court quashes planning permission due to failure to address material contravention of development plan.

[2026] IEHC 395

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000403]

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT

ACT 2000

BETWEEN

MARK MACSWEENEY

APPLICANT

AND

AN COIMISIÚN PLEANÁLA, THE MINISTER FOR HOUSING LOCAL GOVERNMENT AND

HERITAGE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

MARSHALL YARDS DEVELOPMENT COMPANY LIMITED

NOTICE PARTY

Date of impugned decision: 30 January 2025

Date proceedings commenced: 26 March 2025

Date of main hearing: 21 May 2026

Date draft judgment circulated: 12 June 2026

JUDGMENT of Humphreys J. delivered on Friday 19 June 2026

1. In Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11

April 2024) (Charleton, O’Malley, Baker and Murray JJ. concurring), the Supreme Court set out how

the question of material contravention of development plans is to be addressed, starting with

engagement with the text of the plan alleged to have been contravened and moving on to a reasoned

analysis of contravention and materiality. These requirements are not satisfied by a statement that

permission should be granted. By necessary implication they cannot be satisfied either by a bald

conclusion that the permission does not materially contravene the plan.

2. In the present case, the council rejected the application on the grounds of such a material

contravention. The inspector also recommended rejection on the grounds of material contravention.

The commission has, of course, power to overrule both of those institutional actors, but when braving

the crossfire to go it alone without a seconder, one would have thought that prudence would dictate

that particular attention be given to ensuring that all “t”s are crossed, all “i”s are dotted, and all

ducks are in a row.

3. That was, unfortunately, not the case here.

4. Applying the law as settled by the Supreme Court to the particular facts here, the

commission identified what it referred to as an element of the project that did not “align” with the

plan but failed to address the question of materiality, moving instead to the question of justification,

which it considered without reference to the applicable statutory test. On three other issues of

material contravention identified by the inspector, the commission did not get much past step 1,

either by reason of a failure to engage with the text of the plan provision, or by reason of a failure

to make a reasoned decision on contravention.

5. The point will become clearer if we compare the Urban Framework Plan (UFP) map – what

is supposed to happen, and the consented project – what did happen.

What the development plan said should be consented

What was consented

6. We can turn now to the specifics of the challenge.

Geographical context

7. The project (https://www.pleanala.ie/en-ie/case/320747) is a large-scale residential

development (LRD) comprising the demolition of the existing shed and associated structures on site

and the construction of 170 residential units, one crèche and all associated development works

including the provision of pedestrian/cyclist facilities along the R338 public road connecting to

Cranmore Rail Station, one ESB substation, one pumping station, the undergrounding of the existing

ESB lines traversing the site, footpaths, lighting, parking, drainage, bicycle and bin stores and

landscaping/amenity areas. Access will be via a new entrance on the L-71051 to the east. All at

Cartron and Garraun South (townlands), Cranmore, Co. Galway. It is located at or near the

following:

– Google Maps aerial view, undated: 53°16'25.7"N 8°57'13.3"W:

https://maps.app.goo.gl/UfFjaM93dBewgUAt6

– Google Maps Street View, July 2025: R338: https://maps.app.goo.gl/dcZaFo1YXYC9hxRWA

Parties

8. The applicant is Mark MacSweeney who is a neighbouring resident. The first named

respondent is An Coimisiún Pleanála, the decision-taker. The second and third named respondents

are the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General. The

notice party is Marshall Yards Development Company Limited, the developer.

Facts

9. On 17 June 2024, the notice party applied to Galway County Council for a LRD comprising a

171-unit development at Cartron and Garraun South (townlands), Oranmore, Co. Galway. An

environmental impact assessment (EIA) screening report, an appropriate assessment (AA) screening

and Natura impact statement (NIS) accompanied the application, along with other relevant

documentation.

10. Upon receipt of the developer’s application, the council sought submissions from the relevant

prescribed bodies as to their views on the proposed development. Submissions were received from

An Taisce, the Department of Housing, Local Government and Heritage, Transport Infrastructure

Ireland and Uisce Éireann. The council also received third-party observations on the proposed LRD

development which included submissions from the applicant dated 19 July 2024.

11. The council’s planner prepared its report, dated 8 August 2024, in which it recommended

that permission for the proposed LRD development be refused for five stated reasons.

12. By way of chief executive order, dated 8 August 2024, the council refused permission for

the proposed LRD development.

13. On 4 September 2024, the notice party made a first-party appeal against the decision of the

council to the commission. In support of its appeal, the notice party submitted revised and updated

documents, including (i) a report from McCutcheon Halley Planning Consultants, (ii) updated

drawings and reports from John Fleming Architects, NRB Consulting Engineers, Model Works, Simon

Roanan Landscape Architects, (iii) an infrastructure report from AKM Engineers, and (iv) a revised

AA screening report and a revised NIS prepared by Enviroguide. The first-party appeal addressed

the reasons for refusal of the council and, in that context, presented a revised development proposal

comprised of 170 residential units.

14. The applicant made a submission in respect of the appeal dated 30 September 2024.

15. On 21 November 2024, the commission noted that the information contained in the revised

AA screening report and the NIS submitted by the developer in support of its appeal were

“significant” and required the developer to advertise such revisions pursuant to s. 142(4) of the

2000 Act.

16. The applicant did not make any submission in response to the re-advertisement.

17. The commission appointed a planning inspector to prepare a report in respect of the appeal.

There were four recorded observers in respect of the appeal, and the council also provided a

response to the appeal. In his report dated 21 January 2025, the inspector recommended that

permission be refused for three stated reasons.

18. As recorded in the commission’s direction (BD-18736-25), dated 24 January 2025, the

commission met on 23 January 2025 and considered the submissions on file and the inspector’s

report, and decided to grant permission by way of split decision 2:1, subject to 22 conditions.

19. By way of commission order, dated 30 January 2025, the commission granted permission

for the LRD development subject to 22 conditions.

Procedural history

20. The applicant issued the proceedings on 26 March 2025.

21. Leave was granted on 7 April 2025.

22. The commission filed its statement of opposition and verifying affidavit on 18 August 2026,

and subsequently filed an amended statement of opposition on 1 December 2025.

23. The State filed its statement of opposition and verifying affidavits on 12 February 2026.

24. The notice party filed its statement of opposition and verifying affidavit on 24 February 2026.

25. The applicant filed a replying affidavit on 16 March 2026.

26. The applicant delivered its submissions on 21 April 2026 (filed on 22 April 2026).

27. The commission delivered its submissions on 29 April 2026 (filed on 30 April 2026).

28. The State parties delivered their submissions on 6 May 2026.

29. The notice party delivered its submissions on 12 May 2026.

30. The statement of case was uploaded to ShareFile on 14 May 2026.

31. The matter was listed for callover on 18 May 2026.

32. The matter was listed for hearing on 21 May 2026.

33. Judgment was reserved at the end of that hearing. I would like to record my thanks to all

of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have

previously sought to make clear, insofar as any points advanced are not being accepted in this or

any other given judgment, that is solely to do with the inherent merits of such points and is no

reflection on those instructed to convey such points, a distinction that most certainly should be, and

I believe generally is in fact, self-evident to all concerned.

34. On 12 June 2026, a draft of the present judgment was sent to the parties to give an

opportunity to address matters such as errors/ambiguities on the basis set out below.

35. Parties are required to:

(i) Read the draft or have their legal representatives if applicable do so on their behalf.

(ii) Identify any matters falling within the below.

(iii) positively communicate with the court in writing in response to the draft by the

deadline specified, such responses to be emailed to the court and uploaded to

ShareFile, either stating that they have no comments or setting out the comments,

(iv) Carry out the foregoing without delay – the draft judgment procedure is a concession

which parties can engage with but must do so with immediate dispatch, discipline

and focus – it is not the opening of a new phase of the litigation that gives rise to

“an entitlement to elaborate procedures at every point” (to use a phrase of O’Donnell

C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. Health Service

Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39);

and still less should the procedure invite the perhaps “serious error, to which lawyers

are prone, to approach any such case on the tacit assumption that only procedures

which approximate to a criminal trial are fair, and anything which departs from that

is somehow dubious” (O’Donnell J. (Clarke C.J., McKechnie, MacMenamin, Dunne JJ.

concurring) in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

(v) Keep the draft confidential. Draft judgments are not public domain materials and,

while they can be shared between the lawyers concerned and their clients, subject

to the following, it is inappropriate for any person to refer to them for any purpose

other than to assist the court in relation to the finalisation of the formal judgment.

Therefore anyone with information as to the text, content or proposed outcome of

any draft is required not to publish or transmit such information to others save solely

by way of private transmission for the legitimate purposes of assisting in the

finalisation of the judgment and subject to a similar restriction on any recipient.

Trial participants should take reasonable steps to keep drafts confidential. On this

topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R.

367, [24/01/2022] T.L.R. 1 (Briggs, Kitchin, Burrows, Rose, Arden SCJJ) which

discusses why restriction on publication of draft judgments is in the interests of the

administration of justice; see also Baigent v. Random House Group Ltd [2006] EWHC

1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R. (Counsel

General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy

[2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey

Vos MR; Davies and Dingemans LJJ. concurring); Public Institution for Social

Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368, [2022] 3 WLUK

291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler LJJ. concurring); Itkin v. Wood

[2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023).

36. The foregoing constitutes an immediately effective direction of the court to the parties and

anyone having notice of the draft judgment with effect from the date of circulation of the draft.

37. The responses should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

(i) informing the court as to whether the party prefers an alternative to a formal written

judgment as proposed, and if the party so considers, whether that party considers

that the entire matter or some specified part of it can be disposed of (a) by order

without a reasoned judgment, or (b) by ex tempore reasons without a written

judgment; and

(ii) informing the court, assuming that the court proceeds with a formal judgment, as

to whether the party wishes to propose any corrections to the draft such as:

(a) any typographical, factual, legal or other errors or ambiguities in the decision;

(b) any redaction of personal or other information that a party wishes to request;

(c) in the event that the court proposes to refer to any matter (whether factual,

legal (including reference to authorities or other legal material), obiter comment

or otherwise) not referred to at the hearing, any comment as to why such

reference is not relevant or otherwise should not be included or why such matter

if included should not lead to the proposed conclusion;

(d) any other matter in the draft judgment that the party considers should be

omitted;

(e) any matter not included in the draft judgment that the party considers should

be added to it (including where the party considers that procedural, factual or

legal points not set out in the judgment should be addressed or where the party

considers that reasons for any aspect of the decision are not set out or where

an overall ground is disposed of but detail of the ground or sub-ground is not

expressly addressed, or where an issue arose the disposition of which would be

obiter but on which the party concerned considers that there would be a benefit

in the court expressing a view); and

(f) any other suggestions as to the wording (as opposed to substance) of the

decision if the proposed wording causes any significant issue for a party for any

identified reason.

38. In particular, parties should draw the court’s attention to any apparent error or ambiguity

whether they have been successful on the point or not.

39. The rules of engagement in such a situation are that the draft is without prejudice to the

right of the court ultimately to issue a judgment in whatever form or with whatever content it

considers appropriate. It is then entirely a matter for the court as to whether to give judgment with

or without amendment including any amendment that appears appropriate to the court whether

arising from submissions or not. Any judgment may be given without further notice following the

expiry of the specified period, whether comments are made or not. That period will not be extended

save in exceptional circumstances.

40. The deadline for such comments from the parties was to be 16:00 on Wednesday 17 June

2026. Comments were as follows:

(i) applicant: no comments;

(ii) commission: no comments;

(iii) State: no comments; and

(iv) notice party: helpfully pointed out some typos.

Relief sought

41. The reliefs sought are as follows:

“1. An Order of Certiorari, by way of an Application for Judicial Review, quashing the Order

of the First Named Respondent (ABP Reference LH07.320747 (Planning Authority Case

Reference 24/60733), made on the 30th January 2025 granting the Notice Party permission

for a Large Scale Residential Development (LRD) comprising of the demolition of the existing

shed and associated structures on site and the construction of 171 [recte 170] no. residential

units, 1 no. creche and all associated development works including the provision of

pedestrian/cyclist facilities along the R338 public road connecting to Oranmore rail station,

1 no. ESB substation, 1 no. pumping station, the undergrounding of the existing ESB lines

traversing the site, footpaths, lighting, parking, drainage, bicycle and bin stores and

landscaping/amenity areas, with access via a new entrance on the L-71051 to the east, at

Cartron and Garraun South, Oranmore, County Galway.

2. Such Declaration(s) of the legal rights and/or legal position of the Applicant and (if

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the Respondents as this Honourable Court considers

appropriate.

3. A Declaration that the Second, Third and/or Fourth Respondents have failed to fulfil

their obligations under Articles 3, 4(1) and 4(2) Directive 2009/147/EC (‘the Birds Directive’)

and Article 6 of Council Directive 93/43/EEC of 21 May 1992 on the conservation of natural

habitats and of wild fauna and flora (‘the Habitats Directive’), as implemented by SI 477 of

2011 and in particular Article 26 thereof, (a) by failing, to have in place site specific

conservation for the Inner Galway Special Protection Area, and (b) by failing to put in place

the necessary conservation measures for the Inner Galway Special Protection Area.

4. A Declaration that the Second, Third and/or Fourth Respondents have failed to fulfil

their obligations under Articles 4(4) and 6 of Council Directive 93/43/EEC of 21 May 1992

on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’),

as implemented by SI 477 of 2011 and in particular Article 26 thereof, (a) by failing, to have

in place site specific conservation for the Galway Bay Complex SAC, and (b) by failing to put

in place the necessary conservation measures for the Inner Galway Complex SAC.

5. A Declaration that Section 50B of the Planning and Development Act 2000 as

amended, and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011

and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure

Campaign Limited v. An Bord Pleanála whereby proceedings where the application of national

environmental law is at issue, it is for the national court to give an interpretation of national

procedural law which, to the fullest extent possible, is consistent with the objectives laid

down in Article 9(3) and (4) of the Aarhus Convention apply to these proceedings.

6. Such further and/or other relief as this Honourable Court shall deem fit (including

an interim orders and/or stays).

7. The costs of the within proceedings.”

Grounds of challenge

42. The core grounds of challenge are as follows:

“PART 1- CORE GROUNDS

(1) Domestic Law Grounds

1. The impugned decision of the First Named Respondent made on the 30th January

2025 LH07.320747 is invalid as it erred in deciding that the proposed development was in

accordance with and/or would not materially contravene the Garraun Urban Framework Plan

contained in Volume 2 of the Galway County Development Plan 2022-2028 including GUFP

10 and Policy objectives PM1, PM5, PMG, PM8, PM 13 and UL2 and Development

Management Standards DM1 in the 2022-2028 plan and/or misinterpreted the Garraun

Urban Framework Plan and/or failed to take into account relevant considerations and/or

gave inadequate reasons (including for disagreeing with its inspector in breach of section

34(10(b) of the 2000 Act as amended) in deciding that the proposed development was in

accordance with the Garraun Urban Framework Plan

2. The impugned decision of the First Named Respondent is invalid as the Respondent

failed to apply SPPR3 of the Sustainable Residential Development Compact Guidelines 2024

in breach of section 28(1C) and/or section 34(2)(aa) of the 2000 Act, in granting permission

for development comprising 269 car parking spaces and/or failed to consider SPPR3 of the

said Guidelines and/or failed to give adequate reasons relating to any purported

consideration and/or application of SPPR 3.

3. The impugned decision of the First Named Respondent is invalid as it failed to give

adequate reasons for disagreeing with its inspector and/or with submissions made by the

public including the Applicant (and reasons for refusal by the planning authority) that the

proposed development would endanger public safety by reason of traffic hazard and the

Board further erred in finding that the proposed development was in accordance with the

development plan when it is in material contravention of objectives ILUP1, WC1, WC3, GBW1

and DM standards 28 and 33 of the GCC development plan 2028-2028 and/or acted without

jurisdiction in granting permission without justifying the same under section 37(2)(b) of the

2000 Act where the planning authority had found a material contravention.

4. The impugned decision of the First Named Respondent is invalid as it failed to give

adequate reasons and/or take into account relevant considerations and/or acted in breach

of section 15 of the Climate and Low Carbon Development Act 2015 as amended, in stating

its decision was consistent with the Climate Action Plan 2024.

(2) EU Law Grounds

Validity of Decision

5. The impugned decision of the First Named Respondent is invalid as it failed to

conduct a valid Appropriate Assessment of the proposed development in breach of Article

6(3) of the Habitats Directive and/or section 177V of the Planning and Development Act

2000 as amended by reason of the absence of conservations objectives and measures for

the Inner Galway Special Protection Area and Inner Galway Complex SAC

Non-Transposition

6. The Second, Third and/or Fourth Respondents (a) failed to fulfil their obligations

under Articles 3, 4(1) and 4(2) Directive 2009/147/EC (‘the Birds Directive’) and Article 6

of Council Directive 93/43/EEC of 21 May 1992 on the conservation of natural habitats and

of wild fauna and flora (‘the Habitats Directive’), as implemented by SI 477 of 2011 and in

particular Article 26 thereof, (a) by failing, to have in place site specific conservation for the

Inner Galway Special Protection Area, and (b) by failing to put in place the necessary

conservation measures for the Inner Galway Special Protection Area.

7. The Second, Third and/or Fourth Respondents have failed to fulfil their obligations

under Articles 4(4) and 6 of Council Directive 93/43/EEC of 21 May 1992 on the conservation

of natural habitats and of wild fauna and flora (‘the Habitats Directive’), as implemented by

SI 477 of 2011 and in particular Article 26 thereof, (a) by failing, to have in place site specific

conservation for the Galway Bay Complex SAC, and (b) by failing to put in place the

necessary conservation measures for the Inner Galway Complex SAC”

The council decision

43. The council decision provides as follows (emphasis added):

“GALWAY COUNTY COUNCIL

PLANNING AND DEVELOPMENT ACTS 2000-2010

DECISION under SECTION 34 of the ACT of 2000

Reference Number: 24/60733

Date of Receipt of Application: 17/06/2024

Marshall Yards Development Company Ltd.

Schalk van Heerden

6 Joyce House

Barrack Square

Ballincollig

P31YX97

I hereby give you NOTICE that the Galway County Council has by order dated 8th August

2024 decided to REFUSE PERMISSION

to the above named, for development of land, in accordance with documents lodged, namely

for the following Large Scale Residential Development (LRD) comprising the demolition of

the existing shed and associated structures on site and the construction of 171 no. residential

units, 1 no. creche and all associated development works including the provision of

pedestrian/cyclist facilities along the R338 public road connecting to Oranmore rail station,

1 no. ESB substation, 1 no. pumping station, the undergrounding of the existing ESB lines

traversing the site, footpaths, lighting, parking, drainage, bicycle and bin stores and

landscaping/amenity areas. Access will be via a new entrance on the L-71051 to the east.

A Natura Impact Statement is submitted to the Planning Authority with this application.

Gross floor space of proposed works: 14,919.80 sqm. Gross floor space of any demolition:

95.37 sqm in the townland of Cartron and Garraun South

for the reasons set out in the Schedule hereto.

In deciding this Planning Application Galway County Council has, in accordance with section

34(3) of the Act, had regard to any submissions or observations received.

Main reasons and considerations on which the decision is based:-

The proposed development has been assessed, within the restrictions imposed by the

principles of proper planning and sustainable development and having regard to the policy

objectives of Galway County Council as set out in the 2022 – 2028 County Development

Plan. Based on this assessment it is considered that the proposed development would be

contrary to the proper planning policies as set out in the County Development Plan.

Signed this 8th day of AUGUST 2024 on behalf of Galway County Council

_________________________

pp COUNTY SECRETARY

SEE ATTACHED SCHEDULE (REASON(S) 5)

Please see attached sheet for important Notice regarding Planning Appeals

…

1. Having regard to the information submitted with the planning application details, the

submissions received, the proximity of the site to the Galway Bay Complex SAC and Inner

Galway Bay SPA, the connectivity from the project site to the aforementioned European sites

in conjunction with the deficiencies and lacunae identified in the NIS submitted as identified

by the planning authority, including an incomplete assessment of the entire project site, the

planning authority cannot be satisfied that the proposed development will not have an

adverse effect on the Galway Bay Complex SAC and Inner Galway Bay SPA, in view

of their conservation objectives, alone or in combination with other plans and projects.

Therefore, if permitted as proposed, the development would materially contravene NHB1,

NHB2 and NHB3 of the Galway County Development Plan 2022-2028 and would be contrary

to the proper planning and sustainable development of the area.

2. Having regard to the location of the subject site situated onto the R-338 Regional

Road, a heavily trafficked arterial route, where the 80kph speed limit applies, it is considered

that the proposed development would result in additional traffic turning movements being

generated at a point, where the horizontal and vertical alignment of the public road is

restricted and whereby the intensification of use and required visibility would constitute a

significant intervention on a Regional /local road, in contravention of Development

Management Standards 28 and 33 and Policy Objectives NNR2 of the Galway

County Development Plan 2022-2028. Therefore, in relation to safeguarding the

transport function of regional & local roads and associated regional & local road junctions, it

is considered that the proposed development would interfere with safety and endanger public

safety by reason of traffic hazard or obstruction of road users or otherwise and therefore

would be contrary to the proper planning and sustainable development of the area.

3. The planning authority have serious concerns regarding the capacity of the

surrounding road network to accommodate the proposed development, taking account of:

- the vehicular dominated layout in conjunction with the lack of sustainable

connectivity and quality of permeability measures evident;

- the suitability of the proposed external and internal traffic circulation regime;

- the potential for conflicting traffic movements, including rigid movements due to

restricted and reversing vehicle [manoeuvrability] within and adjoining the site, which may

negatively impact on road and pedestrian safety;

-the geometrical parameters evident with regard to the development road layout contrary

to the desirable minimum DMURS standards, TII publications and Cycle Design Manual; and

-the absence of demonstrating compatible linkages with the proposed Strategic Greenway

Network (preferred route of the Galway to Athlone Corridor);

Accordingly, to grant permission for the development as proposed would have an

unacceptable impact on the sustainable movement and transportation of the area and would

materially contravene policy objectives ILUTP1, WC1, WC3, GBW1 and DM

Standards 28 and 33 of the Galway County Development Plan 2022-2028 and

therefore would be contrary to the proper planning and sustainable development of the area.

4. Having regard to the general design of the proposed layout including the lack of

satisfactory urban design and placemaking considerations and the similarity in the design of

a significant number of residential units, in conjunction with the absence of provision of

connected green spaces/corridors within the scheme and deficiencies in the private open

space provision for a number of units, it is considered that the proposal represents a

substandard form of development that would also compromise the residential amenity of

future occupants. Accordingly, to grant the proposed development would contravene

materially Policy Objectives PM 1, PM 5, PM 6, PM 8, PM 13 and UL 2 as well as

Development Management Standards DM1 contained in the Galway County

Development Plan 2022-2028, would set an undesirable precedent for similar future

development and would be contrary to the proper planning and sustainable development of

the area.

5. The development proposal fails to satisfactorily take account of the wider Garraun

Urban Framework Plan area, and does not satisfactorily demonstrate the vision, principles

or objectives of the Urban Framework Plan, particularly in terms of sustainable connectivity,

landscape and placemaking considerations. Therefore, if permitted as proposed the

development would be contrary to Policy Objective GUFP 10 of the Garraun Urban

Framework Plan as set out under the Galway County Development Plan 2022-2028

and would therefore be contrary to the proper planning and sustainable development of the

area.”

The inspector’s analysis

44. The inspector concluded as follows in relation to AA (emphasis added):

“15.8 NIS Assessment:

15.9 I have relied on the following guidance: Appropriate Assessment of Plans and

Projects in Ireland: Guidance for Planning Authorities, DoEHLG (2009); Assessment of plans

and projects significantly affecting Natura 2000 sites. Methodological guidance on the

provisions of Article 6(3) and 6(4) of the Habitats Directive 92/43/EC, EC (2002); Managing

Natura 2000 sites, The provisions of Article 6 of the Habitats Directive 92/43/EEC, EC (2018).

15.10 The Inner Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site

Code 000268) are subject to appropriate assessment. A description of the sites and their

Conservation Objectives and Qualifying Interests are set out in the submitted NIS and have

already been outlined in this report as part of my assessment. I have also examined the

Natura 2000 data forms as relevant and the Conservation Objectives supporting documents

for these sites available through the NPWS website.

15.11 Aspects of the Development that could adversely affect the designated sites: The

main aspects of the development that could impact the conservation objectives of the

European sites are through habitat loss by deterioration of water quality by runoff from the

site, through habitat loss/ alteration or degradation by invasive species and potential for

visual and noise impacts on SCI Species. The subject site is within 5m of a designated site

and therefore considerations of distance and dilution effect on any pollutants entering the

surface water drainage system cannot be ruled out.

15.12 Mitigation: A range of mitigation measures are provided in the NIS, and these are

noted. These refer to the construction and operational phases of the development as

provided in the applicant’s report. A range of measures including the introduction of a

suitable SuDS plan will address potential surface water runoff issues. Careful control/

treatment of invasive species will be required during the construction phase and into the

operational phase. The proximity of the site to designated sites rightly requires a degree of

caution to be deployed throughout the construction and operational phases.

15.13 Overall, I consider that the proposed mitigation measures are clearly described, and

precise, and definitive conclusions can be reached in terms of avoidance of adverse effects

on the integrity of designated European sites based on the outlined mitigation measures. I

consider that the mitigation measures are necessary having regard to the proximity of the

site to the Inner Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site

Code 000268). Overall, the measures proposed are effective, reflecting current best

practice, and can be secured over the short and medium term and the method of

implementation will be through a detailed management plan and appropriate monitoring

through the construction and operational phases of the development.

15.14 In Combination Effects: No issues of concern are raised subject to the full

implementation of mitigation measures outlined in the NIS.

15.15 Appropriate Assessment Conclusion:

15.16 The proposed residential development at Cartron, to the north of the Coast Road,

Oranmore, Co. Galway has been considered in light of the assessment requirements of

Sections 177U and 177V of the Planning and Development Act 2000 as amended.

15.17 Having carried out screening for Appropriate Assessment of the project, it was

concluded that it may have a significant effect on the Inner Galway Bay SPA (Site Code

004031) and Galway Bay Complex SAC (Site Code 000268). Consequently, an Appropriate

Assessment was required of the implications of the project on the qualifying features of the

site in light of its conservation objectives.

15.18 Following an Appropriate Assessment, it has been ascertained that the proposed

development, individually or in combination with other plans or projects would not

adversely affect the integrity of the Inner Galway Bay SPA (Site Code 004031) and

Galway Bay Complex SAC (Site Code 000268) subject to the implantation in full of

appropriate mitigation measures.

15.19 This conclusion is based on:

• A full and detailed assessment of all aspects of the proposed project including

proposed mitigation measures and monitoring in relation to the Conservation Objectives of

the Inner Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site Code

000268).

• Detailed assessment of in combination effects with other plans and projects including

historical projects, plans and current proposals.

• No reasonable scientific doubt as to the absence of adverse effects on the integrity

of the Inner Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site Code

000268).

15.20 I have had full consideration of the information, assessment and conclusions

contained within the NIS. I have also had full regard to National Guidance and the

information available on the National Parks and Wildlife Service (NPWS) website in relation

to the identified designated Natura 2000 sites. I have had full regard to the submitted report

from the Department of Housing, Local Government and Heritage, and that of the Planning

Authority. The applicant has revised their AA Screening and NIS in support of their first

party appeal. I consider it reasonable to conclude that on the basis of the information

submitted in the NIS report, including the recommended mitigation measures, and

submitted in support of this application, that the proposed development, individually or in

combination with other plans or projects would not be likely to adversely affect the integrity

of the Inner Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site Code

000268).”

45. It can be noted that by contrast with the council, the inspector had the benefit of additional

information in the form of a revised NIS in coming to the foregoing conclusions.

46. He proposed refusal for the following reasons (emphasis added):

“1. The proposed development does not provide for a suitable high quality of urban design

and fails to demonstrate that it has regard to the Garraun Urban Framework Plan forming

part of Oranmore and provided for within Volume 2 of the Galway County Development Plan

2022 – 2028. The submitted layout plan does not provide for an east to west street, there

is no north to south green spine and there is a lack of connectivity which conflicts with

this Urban Framework Plan. The proposed development would, therefore, seriously

injure the visual amenities of the area and be contrary to the proper planning and sustainable

development of the area.

2. The vehicular access to the site from the R338/ Coast Road is over a short section of

minor road, which is seriously substandard in terms of width and alignment. In addition,

the access to this road is adjacent to the proposed creche and associated set down area.

The section of road from the junction with the R338/ Coast Road, including the area adjacent

to the creche and which leads to the residential development will be heavily trafficked and

will be prone to congestion at peak times. The traffic generated by the proposed

development would therefore endanger public safety by reason of traffic hazard and

obstruction of road users.

3. Vehicular traffic accessing this development will be from the R338/ Coast Road, within

an area that an 80 kph speed limit applies. The applicant has not proposed any significant

junction improvements here and in particular no right turn lane is provided for traffic coming

from the east of the site. It is to be expected that there will be a significant volume of traffic

from the east considering the location of Oranmore, its shops, schools and railway station.

Vehicles accessing the site will cross over the potential route of a greenway, therefore giving

rise to potential traffic conflict. Having regard to the scale of the proposed development and

the traffic to be generated by it, it is considered that the additional traffic associated with

this residential scheme would endanger public safety by reason of traffic hazard and

would lead to conflict between road users, that is, vehicular traffic, pedestrians

and cyclists.”

The impugned decision

47. The impugned decision provides as follows:

“Decision

GRANT permission for the above proposed development in accordance with the said plans

and particulars based on the reasons and considerations under and subject to the conditions

set out below.

Reasons and Considerations

In coming to its decision, consistent with the Climate Action Plan 2024, the Board had regard

to the following:

(i) the provisions and policies of the Galway County Development Plan 2022 -2028,

(ii) the zoning objective R – ‘Residential Phase 1’ with an objective ‘To protect, provide and

improve residential areas within the lifetime of this plan’ of the development plan,

(iii) the Galway County Development Plan 2022-2028, Garraun Urban Framework Plan,

(iv) Housing for all issued by the Department of Housing, Local Government and Heritage,

2021, and Rebuilding Ireland Action Plan for Housing and Homelessness 2016,

(v) the Sustainable Residential Development and Compact Settlements - Guidelines for

Planning Authorities, issued by the Department of Housing, Local Government and Heritage,

January 2024,

(vi) the Sustainable Urban Housing: Design Standards for New Apartments Guidelines for

Planning Authorities, issued by the Department of Housing and Planning and Local

Government, December 2023,

(vii) the National Biodiversity Action Plan 2023,

(viii) the pattern of existing and permitted development in the area,

(ix) submissions and observations received, and

(x) the Inspectors Report.

It is considered that, subject to compliance with the conditions set out below, the proposed

development would be in accordance with the policies and objectives of the Galway County

Development Plan 2022-2028, in particular the Garraun Urban Framework Plan (UFP), the

Core Strategy and zoning objective. The proposed development would not materially

contravene the current development plan for the area, would not constitute a traffic hazard

by reason of significant additional traffic or traffic movements, would be in accordance with

the Urban design principles of placemaking set out in the Urban Framework Plan and be in

accordance with the proper planning and sustainable development of the area.

In deciding not to accept the Inspector's recommendation to refuse permission, the Board

considered the totality of the file. The Board agreed with the Inspectors conclusion that the

environmental information submitted at appeal stage addressed the deficiencies in the

Natura Impact Statement submitted to the planning authority and reason 1 of the planning

authority's refusal. Therefore the Board were able to conclude an Appropriate Assessment

stage 2.

The Board noted that the lands are zoned phase 1 residential in the Galway County

Development Plan 2022-2028 and that Garraun is identified as a growth area, a Metropolitan

Area Settlement in the Core Strategy. The development plan includes an Urban Framework

Plan for the settlement of Garraun, this sets out the vision and form for the growth of the

metropolitan area settlement.

The Board noted that this is an area in transition from green field to a new settlement with

a clear plan for the area's development as set out in the UFP. The core of the area adjoins

the railway station and the site the subject of this application is at the edge of the Plan area.

It is subject to medium density growth, with pedestrian and cycle linkages to the railway

station, future schools, the commercial core and lands to the north of the railway being via

the Coast Road the R388 and the L7105.

The Urban Framework Plan, Section 6.3 and 6.4, Public Transport and Movement and Access

set out how the nature of the Coast Road is to change to accommodate future growth,

providing for a local bus connection, and attractive routes for pedestrian and cyclists with a

traffic management zone to assist in achieving this change in the role and function of the

regional road. The plan states ‘The Coast Road will serve the existing and new residential

areas south of the railway, as well as the station carpark. As Garraun is developed, through

traffic between Galway and Cranmore will be diverted via the N67/R446, making the Coast

Road an attractive and safe coastal amenity and connection for pedestrians and cyclists.’

(Section 6.4 Garr[a]un Urban Framework Plan). The Urban Framework Plan provides a

phasing for the zoned land but does not link that phasing to the delivery of infrastructure.

The Board did not consider the scheme as proposed contravened Policy ILUPT 1 of the

Development Plan. The proposed development includes works to the public road, the works

proposed include improved cycle and pedestrian access on the Coast Road improving access

for sustainable modes to lands zoned for community uses and commercial core as well as

the existing train station, and the application is accompanied by a letter of consent from

Galway County Council to include the public road within the red line.

These works on the public road, while not integrated into the county cycle network that is

yet to be finalised, do provide local access to lands zoned for services and facilities and to

the train station. These works may be seen as interim works to improve the current situation

until the longer-term strategic cycle network plan, that has been the subject of public

consultation, is advanced. There is no evidence on file that the works proposed by the

applicant to the public road would prejudice any future plans. The development as proposed

therefore aligns with policy ILUPT 1 and GBW1 both promoting and facilitating walking and

cycling.

On the matter of DM 28 and DM 33, the applicant has responded comprehensively to these

in the appeal submission. Chapter 6 WC 3 relates to cycle parking in the public realm of

towns and villages, this is addressed in the application with cycle parking being provided for

the creche, regarding WC1 the applicant has detailed how the proposed development accords

with DMURS.

The applicant has demonstrated that the proposed access is not a traffic hazard. The

vehicular access to the site is positioned to align with the requirements of the Urban

Framework Plan. This access point was always going to require traffic to turn off the Coast

Road into the local road, the matter of delivering the traffic management zone on the coast

road as indicated on the urban framework plan and the strategic cycle network is a matter

for the local authority to deliver. The site is identified as a phase 1 residential site, to refuse

permission on the basis that the wider infrastructure is not in situ, particularly where the

developer is proposing to provide improved connectivity, would undermine the core strategy

of the development plan. Therefore, the Board did not concur with reason 2 and 3

recommended by the Inspector or reason 2 and 3 of the planning authorities’ reason for

refusal. The Scheme as proposed does not contravene the policies in the development plan

as referenced in the reasons for refusal and addressed above. The Board considered that

the infrastructure proposed on the public road should be delivered with the first phase of the

development and prior to any house being occupied; this could be dealt with by condition.

Addressing the Inspectors first recommended reason for refusal; the Board considers having

regard to the details submitted both with the application and the appeal, the design and

layout does not materially contravene the Garraun Urban Framework Plan, the applicant has

provided an east west route albeit staggered for reasons to do with traffic calming. The

broken line of trees that are identified as a green spine in the Urban Framework Plan (Section

7), the arborist drawings accompanying the application show that the trees have a limited

life and no evidence to the contrary has been provided, the applicant has designed the

scheme to retain the trees that merit retention. The landscape plan clearly shows the

significant level of new planting proposed, this accords with the Urban Framework Plan. The

Board noted the Inspectors concerns regarding internal pedestrian routes, the Board

considered that on balance the applicants rationale set out in the architectural design

statements and the connectivity provided through the open space areas create internal

connections, in addition to the footpaths on the streets, and therefore the scheme was

acceptable.

The Board considered the revisions at appeal to the house types was welcome. The Board

did have concerns regarding the manner in which it is proposed to differentiate between the

three-character areas, specifically the uniformity of the finishes proposed, notwithstanding

the limited change in colours and materials. This requires further consideration and should

be a matter for agreement with the planning authority by way of a compliance condition.

The Board noted the planning authorities' reasons for refusal included noncompliance with

PM1, PM5, PM6, PM8, PM 13, UL 2 and GUFP 10. These policies relate to place making,

sustainable travel, health and wellbeing, character and identity, public realm opportunities,

layout and design and compliance with the Urban Framework Plan. The matters relating to

sustainable travel have been addressed above, and so far as this relates to health and

wellbeing so has this. On the wider matter of urban design, placemaking, public realm,

layout and design, and compliance with the parameters of the Urban Framework Plan for

this site the Board considered that the design and layout align with the key features of the

UFP, drawing contained in Section 7, except for the green spine with the reason for not

retaining the totality of the green spine, the condition of the trees, being acceptable. The

Board, therefore, did not concur with the planning authority.

The Board noted that both the Inspector and the planning authority considered the density

proposed 39uph to accord with the site's designation for medium density development, and

both accepted that the creche is appropriate in size to serve the future residents. The area

of open space required is not prescriptive in the development plan, noting the landscape

rationale submitted and the wider Urban Framework Plan context where significant public

open space and areas for community facilities have been identified, the Board considered

the spaces proposed are well integrated into the layout of the scheme. The housing mix is

acceptable and the frontage to the coast road aligns with the schematic layout shown in

Section 7 of the Urban Framework Plan.

Appropriate Assessment (AA) - Stage 1

The Board completed an Appropriate Assessment screening exercise in relation to the

potential effects of the proposed development on designated European sites, taking into

account the nature, scale and location of the proposed development within an established

town centre location and adequately serviced urban site, the Appropriate Assessment

Screening Report submitted with the application, the Inspector's Report, and submissions

on file.

In completing the screening exercise, the Board adopted the report of the Inspector and

concluded that, by itself or in combination with other development in the vicinity, the

proposed development would not be likely to have a significant effect on any European site

in view of the conservation objectives of such sites, other than the Inner Galway Bay Special

Protection Area (Site C ode: 004031) and Galway Bay Complex Special Area of Conservation

(Site Code: 000268) for which Appropriate Assessment is, therefore, required.

Appropriate Assessment - Stage 2

The Board considered the Natura Impact Statement and all other relevant submissions

including expert submissions received and carried out an appropriate assessment of the

implications of the proposed development on Inner Galway Bay Special Protection Area (Site

Code: 004031) and Galway Bay Complex Special Area of Conservation (Site Code: 000268)

in view of the conservation objectives of these sites. The Board considered that the

information before it was sufficient to undertake a complete assessment of all aspects of the

proposed development in relation to the site's conservation objectives using the best

available scientific knowledge in the field.

In completing the assessment, the Board considered, in particular, the following:

(a) the likely direct and indirect impacts arising from the proposed development both

individually or in combination with other plans or projects,

(b) the mitigation measures which are included as part of the current proposal, and

(c) the conservation objectives for the European sites.

In completing the Appropriate Assessment, the Board accepted and adopted the Appropriate

Assessment carried out in the Inspector's report in respect of the potential effects of the

proposed development on the aforementioned European Sites, having regard to the sites'

conservation objectives.

In overall conclusion, the Board was satisfied that the proposed development, by itself or in

combination with other plans or projects, would not adversely affect the integrity of the

European Sites in view of the conservation objectives of these sites.

This conclusion is based on a complete assessment of all aspects of the proposed project

and there is no reasonable scientific doubt as to the absence of adverse effects.

Environmental Impact Assessment (EIA)

The Board completed an Environmental Impact Assessment screening of the proposed

development and considered that the Environment Impact Assessment Screening Report

submitted by the applicant, which contains information set out in Schedule 7A to the Planning

and Development Regulations, 2001, as amended, identifies and describes adequately the

effects of the proposed development on the environment.

Having regard to:

(a) the nature and scale of the proposed development, which is substantially below the

thresholds in respect of Paragraphs 10 (b) (i) and (iv) of Part 2 of Schedule 5 of the Planning

and Development Regulations, 2001 as amended,

(b) the existing use of the site and the pattern of development in the vicinity,

(c) the availability of public water and foul services to serve the proposed development,

(d) the criteria set out in Schedule 7 of the Planning and Development Regulations, 2001,

as amended, and the content of the applicant's Environmental Impact Assessment Screening

Report, and

(e) the measures proposed by the applicant envisaged to avoid or prevent what might

otherwise be significant effects on the environment, including measures identified in the

Outline Construction Environmental Management Plan,

it is considered that the proposed development would not be likely to have significant effects

on the environment and that the preparation and the submission of an Environmental Impact

Assessment Report would not therefore be required.

Conclusions on Proper Planning and Sustainable Development:

The Board considered that, subject to compliance with the conditions set out below, the

proposed development would be in accordance with the policies and objectives of the Galway

County Development Plan 2022-2028, in particular the Garraun Urban Framework Plan, the

Core Strategy and zoning objective for this site, and that the proposed development would

not constitute a traffic hazard by reason of significant additional traffic or traffic movements,

would accord with the Urban design principles of placemaking and would, therefore, be in

accordance with the proper planning and sustainable development of the area.

Conditions

1. The development shall be carried out and completed in accordance with the plans and

particulars lodged with the application, as amended by the further plans and particulars

received by An Bord Pleanála on the 4th day of September 2024, except as may otherwise

be required in order to comply with the following conditions. Where such conditions require

details to be agreed with the planning authority, the developer shall agree such details in

writing with the planning authority prior to commencement of development and the

development shall be carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

2. The mitigation measures contained in the submitted Natura Impact Statement (NIS), shall

be implemented.

Reason: To protect the integrity of European Sites.

3. Design details of all works on the R338 the Coast Road and L71051, including the shared

pedestrian route as shown on landscape drawings, shall be submitted to, and agreed in

writing with, the planning authority prior to commencement of development. All work shall

be carried out at the developer's expense.

The agreed works shall be carried out as part of phase 1 of the development, and no house

shall be occupied until the works have been completed to the written satisfaction of the

planning authority.

Reason: In the interest of sustainable development.

4. Prior to commencement of development, the following shall be submitted for the written

agreement of the planning authority:

(a) Details of the materials, colours and textures of all the external finishes, the proposed

finishes submitted to the Board on appeal shall be revised so that the three-character areas

proposed are distinctly different in finish to reinforce the character areas. The proposed

finishes shall also be appropriate to their wider setting.

(b) Area to be taken in charge by the planning authority.

(c) The provision of EV charging points.

Reason: In the interest of visual amenity and to provide certainty.

5. The development shall be carried out on a phased basis, in accordance with a phasing

scheme which shall be submitted to, and agreed in writing with, the planning authority prior

to commencement of any development (other than the works in condition number 3).

Reason: To ensure the timely provision of services, for the benefit of the occupants of the

proposed dwellings.

6. The disposal of surface water shall comply with the requirements of the planning authority

for such works and services. Prior to commencement of development, the developer shall

submit details for the disposal of surface water from the site for the written agreement of

the planning authority.

Reason: To prevent flooding and in the interests of sustainable drainage.

7. Prior to the commencement of development, the developer shall enter into a connection

agreement (s) with Uisce Eireann (Irish Water) to provide for a service connection(s) to the

public water supply and wastewater collection network.

Reason: In the interest of public health and to ensure adequate water/wastewater facilities.

8. (a) The internal road network serving the proposed development including turning bays,

junctions, parking areas, footpaths, and kerbs shall comply with the detailed construction

standards of the planning authority for such works and design standards outlined in Design

Manual for Urban Roads and Streets (DMURS).

(b) Footpaths shall be dished at road junctions in accordance with the requirements of the

planning authority. Details of all locations and materials to be used shall be submitted to

and agreed in writing with the planning authority prior to commencement of development.

Reason: In the interest of amenity and of traffic and pedestrian safety.

9. Public lighting shall be provided in accordance with a scheme which shall be submitted to

and agreed in writing with the planning authority prior to the commencement of

development. The scheme shall include lighting along pedestrian routes through open

spaces and shall take account of trees within the drawing landscape plan. Such lighting shall

be provided prior to the making available for occupation of any residential unit.

Reason: In the interest of amenity and public safety.

10. All service cables associated with the proposed development (such as electrical,

telecommunications and communal television) shall be located underground. Ducting shall

be provided by the developer to facilitate the provision of broadband infrastructure within

the proposed development.

Reason: In the interests of visual and residential amenity.

11. A plan containing details for the management of waste (and, in particular, recyclable

materials) within the development, including the provision of facilities for the storage,

separation and collection of the waste and, in particular, recyclable materials shall be

submitted to, and agreed in writing with, the planning authority prior to commencement of

development. Thereafter, the agreed waste facilities shall be maintained and waste shall be

managed in accordance with the agreed plan.

Reason: To provide for the appropriate management of waste and, in particular recyclable

materials, in the interest of protecting the environment.

12. The site shall be landscaped in accordance with a comprehensive scheme of landscaping,

details of which shall be submitted to, and agreed in writing with, the planning authority

prior to commencement of development. This scheme shall include the following:

(a) A plan to scale of not less than 1 :500 showing -

(i) Existing trees, hedgerows, stone walls, specifying which are proposed for

retention as features of the site landscaping.

(ii) The measures to be put in place for the protection of these landscape features

during the construction period.

(iii) The species, variety, number, size and locations of all proposed trees and shrubs

which shall comprise predominantly native species such as mountain ash, birch,

willow, sycamore, pine, oak, hawthorn, holly, hazel, beech or alder.

(iv) Details of screen planting.

(v) Details of roadside/street planting.

(vi) Hard landscaping works, specifying surfacing materials, furniture, play

equipment and finished levels.

(vii) Details of all boundary treatments.

(b) Specifications for mounding, levelling, cultivation and other operations associated with

plant and grass establishment.

(c) A timescale for implementation including details of phasing.

All planting shall be adequately protected from damage until established. Any plants which

die, are removed or become seriously damaged or diseased, within a period of five years

from the completion of the development or until the development is taken in charge by the

local authority, whichever is the sooner, shall be replaced within the next planting season

with others of similar size and species, unless otherwise agreed in writing with the planning

authority.

Reason: In the interest of residential and visual amenity.

13. The areas of public open space shown on the lodged plans shall be reserved for such use

and shall be soiled, seeded, and landscaped in accordance with the landscape scheme agreed

with the planning authority. This work shall be completed before any of the dwellings are

made available for occupation and shall be maintained as public open space by the developer

until taken in charge by the local authority or management company.

Reason: In order to ensure the satisfactory development of the public open space areas, and

their continued use for this purpose.

14. Proposals for an estate/street name, house numbering scheme and associated signage

shall be submitted to, and agreed in writing with, the planning authority prior to

commencement of development. Thereafter, all estate, street signs, and house numbers,

shall be provided in accordance with the agreed scheme. The proposed name(s) shall be

based on local historical or topographical features, or other alternatives acceptable to the

planning authority. No advertisements/marketing signage relating to the name(s) of the

development shall be erected until the developer has obtained the planning authority's

written agreement to the proposed name(s).

Reason: In the interest of urban legibility and to ensure the use of locally appropriate

placenames for new residential areas.

15. A Construction and Environmental Management Plan (CEMP) shall be submitted to and

agreed in writing with the planning authority prior to the commencement of development.

The CEMP shall include but not be limited to construction phase controls for dust, noise and

vibration, waste management, protection of soils, groundwaters, surface waters, site

housekeeping, emergency response planning, site environmental policy, and project roles

and responsibilities.

Reason: In the interest of environmental protection residential amenities, public health and

safety and environmental protection.

16. Site development and building works shall be carried out only between the hours of 0700

to 1900 Mondays to Friday inclusive, between 0800 to 1400 hours on Saturdays and not at

all on Sundays and public holidays. Deviation from these times will only be allowed in

exceptional circumstances where prior written approval has been received from the planning

authority.

Reason: In order to safeguard the residential amenities of property in the vicinity.

17. Prior to commencement of development, a Resource Waste Management Plan (RWMP)

as set out in the EPA's Best Practice Guidelines for the Preparation of Resource and Waste

Management Plans for Construction and Demolition Projects (2021) shall be prepared and

submitted to the planning authority for written agreement. The RWMP shall include specific

proposals as to how the RWMP will be measured and monitored for effectiveness. All records

(including for waste and all resources) pursuant to the agreed RWMP shall be made available

for inspection at the site office at all times.

Reason: In the interest of reducing waste and encouraging recycling.

18. The development hereby permitted shall be carried out and completed at least to the

construction standards as set out in the planning authority's Taking In Charge Standards.

In the absence of specific local standards, the standards as set out in the 'Recommendations

for Site Development Works for Housing Areas' issued by the Department of the Environment

and Local Government in November 1998. Following completion, the development shall be

maintained by the developer, in compliance with these standards, until taken in charge by

the planning authority.

Reason: To ensure that the development is carried out and completed to an acceptable

standard of construction.

19. Prior to commencement of development, the applicant or other person with an interest

in the land to which the application relates shall enter into an agreement in writing with the

planning authority [in relation to the transfer of a percentage of the land, to be agreed with

the planning authority, in accordance with the requirements of section 94(4) and section

96(2) and 96(3)(a), (Part V) of the Planning and Development Act 2000, as amended, and/or

the provision of housing on lands in accordance with the requirements of section 94(4) and

section 96(2) and 96(3) (b), (Part V) of the Planning and Development Act 2000, as

amended], unless an exemption certificate has been granted under section 97 of the Act, as

amended. Where such an agreement cannot be reached between the parties, the matter in

dispute (other than a matter to which section 96(7) applies) shall be referred by the planning

authority or any other prospective party to the agreement, to An Bord Pleanála for

determination.

Reason: To comply with the requirements of Part V of the Planning and Development Act

2000, as amended, and of the housing strategy in the development plan for the area.

20. (a) Prior to the commencement of the development as permitted, the applicant or any

person with an interest in the land shall enter into an agreement with the planning authority

(such agreement must specify the number and location of each house or duplex unit),

pursuant to Section 47 of the Planning and Development Act 2000, that restricts all relevant

residential units permitted, to first occupation by individual purchasers i.e. those not being

a corporate entity, and/or by those eligible for the occupation of social and/or affordable

housing, including cost rental housing.

(b) An agreement pursuant to Section 47 shall be applicable for the period of duration of the

planning permission, except where after not less than two years from the date of completion

of each specified housing unit, it is demonstrated to the satisfaction of the planning authority

that it has not been possible to transact each of the residential units for use by individual

purchasers and/or to those eligible for the occupation of social and/or affordable housing,

including cost rental housing.

(c) The determination of the planning authority as required in (b) shall be subject to receipt

by the planning and housing authority of satisfactory documentary evidence from the

applicant or any person with an interest in the land regarding the sales and marketing of the

specified housing units, in which case the planning authority shall confirm in writing to the

applicant or any person with an interest in the land that the Section 47 agreement has been

terminated and that the requirement of this planning condition has been discharged in

respect of each specified housing unit.

Reason: To restrict new housing development to use by persons of a particular class or

description in order to ensure an adequate choice and supply of housing, including affordable

housing, in the common good.

21. Prior to commencement of development, the developer shall lodge with the planning

authority a cash deposit, a bond of an insurance company, or other security to secure the

provision and satisfactory completion and maintenance until taken in charge by the local

authority of roads, footpaths, watermains, drains, public open space and other services

required in connection with the development, coupled with an agreement empowering the

local authority to apply such security or part thereof to the satisfactory completion or

maintenance of any part of the development. The form and amount of the security shall be

as agreed between the planning authority and the developer or, in default of agreement,

shall be referred to An Bord Pleanála for determination.

Reason: To ensure the satisfactory completion and maintenance of the development until

taken in charge.

22. The developer shall pay to the planning authority a financial contribution in respect of

public infrastructure and facilities benefiting development in the area of the planning

authority that is provided or intended to be provided by or on behalf of the authority in

accordance with the terms of the Development Contribution Scheme made under section 48

of the Planning and Development Act 2000, as amended. The contribution shall be paid

prior to commencement of development or in such phased payments as the planning

authority may facilitate and shall be subject to any applicable indexation provisions of the

Scheme at the time of payment. Details of the application of the terms of the Scheme shall

be agreed between the planning authority and the developer or, in default of such

agreement, the matter shall be referred to An Bord Pleanála to determine the proper

application of the terms of the Scheme.

Reason: It is a requirement of the Planning and Development Act 2000, as amended, that a

condition requiring a contribution in accordance with the Development Contribution Scheme

made under section 48 of the Act be applied to the permission.”

Procedures for material contravention

48. The wording of a development plan may include highly specific wording with a limited role

for evaluation, or it may include very general language that creates a zone of evaluative judgement

for the decision-taker, and generally speaking evaluative judgements not tainted by other

procedural, legal or factual errors are reviewable on an unreasonableness standard: Oxigen v. An

Coimisiún Pleanála [2025] IEHC 632 (Unreported, High Court, 19 November 2025), Jennings v. An

Bord Pleanála [2023] IEHC 14 (Unreported, High Court, Holland J., 17 February 2023), Sherwin v.

An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11 April 2024) (Charleton,

O’Malley, Baker and Murray JJ. concurring), which is a critical authority on the issue of contravention

of the development plan.

49. One initial point is that while Sherwin arose in the context of the strategic housing

development (SHD) procedure, the ratio clearly relates to plan contraventions generally, based on

the fact that it begins with a discussion of the importance of the development plan, citing authorities

relating to regular planning process. That discussion would have been irrelevant and inappropriate

if Sherwin was in some way limited to the issue of SHD-type restrictions on the power to contravene

(such as s. 37(2)(b) of the 2000 Act). The Sherwin failure to engage with the plan is distinct from

the situation in Ryanair v. An Bord Pleanála [2025] IEHC 74 (Unreported, High Court, 14 February

2025), where the board did in fact identify a contravention of the local area plan but where the

discussion elided the concepts of materiality and justification, but not in a way that affected the

substance of the decision. Ryanair ultimately is about the principle that a non-legally-significant

taxonomic confusion is not fatal if the decision is robust in substance. That decision does not support

a procedure where there is a much more basic failure to get to grips with the development plan

provision being contravened in the first place.

50. Sherwin v. An Bord Pleanála [2024] IESC 13 (Unreported, Supreme Court, Woulfe J., 11

April 2024) (Charleton, O’Malley, Baker and Murray JJ. concurring) identifies a number of important

points:

(i) The importance of the development plan is well established: Attorney General

(McGarry) v. Sligo County Council [1991] 1 I.R. 99, [1989] I.L.R.M. 768 (Walsh J.)

(Hederman and McCarthy JJ. concurring); Byrne v. Fingal County Council [2001]

IEHC 141, [2001] 4 I.R. 565 (McKechnie J.) (Sherwin paras. 90-92).

(ii) “It is well established that the interpretation of a development plan is

ultimately a matter for the courts. Any misinterpretation of the development

plan by the relevant planning authority is an error of law which goes to jurisdiction.

It is also well established that the development plan is not to be treated as if it were

a piece of primary or secondary legislation emanating from skilled draughtsmen, and

inviting the exceptive canons of construction applicable to such material. Instead,

a development plan falls to be construed in its ordinary meaning as it would be

understood by members of the public without legal training, as well as by developers

and their agents, unless the document, read as a whole, necessarily indicates some

other meaning” (Sherwin para. 96, emphasis added).

(iii) As regards what is a contravention, “Certain aspects of the plan may have a high

level of specificity. In those cases, it may not be at all difficult to determine whether

what is proposed is in contravention of the plan, and it would only remain to exercise

a judgment as to the materiality of any such contravention. However, at the other

end of the spectrum, it is not uncommon to find objectives in a development plan

which may, to a greater or lesser extent, be properly described as aspirational. Such

objectives may be expressed in general terms. In such cases, a much greater degree

of judgment may need to be exercised as to whether the development proposed

amounts to a material contravention of the development plan.” (Sherwin para. 95

citing Maye v. Sligo Borough Council [2007] IEHC 146, [2007] 4 I.R. 678 (Clarke J.)

– the discussion also relies on Jennings v. An Bord Pleanála [2023] IEHC 14

(Unreported, High Court, Holland J., 17 February 2023)).

(iv) “the first question must be the nature of the determination (if any) actually made

by the decision-maker, ‘as to whether or not the proposed application as a

matter of law and fact would materially contravene the development plan’,

(per Costello J. in [South-West Regional Shopping Centre Promotion Association

Limited v. An Bord Pleanála [2016] IEHC 84]), in circumstances where there has

been the required focus by the decision-maker on the specific provision of

the plan allegedly materially contravened. In my opinion that question is the

crucial starting point, before one gets to the questions as to the standard of review

by the court.” (Sherwin para. 105, emphasis added). See also Wilson v. An Bord

Pleanála [2025] IEHC 523 (Unreported, High Court, 3 October 2025) per Farrell J.

(v) Thus where “the details of this planning application, and the materials before the

Inspector and the Board, clearly required a focus by the Board on [a specified]

policy” (Sherwin para. 106), this has the consequence that, even if the material was

“not expressly alleging a material contravention of the development plan in terms”

(Sherwin para. 107), the position is that “[i]n the circumstances it [is] incumbent

on the Inspector to make a determination as to whether or not the proposed

development, as a matter of law and fact, would materially contravene [the

specified] policy” (Sherwin para. 108, emphasis added).

(vi) “the first step in making the required determination was for the Inspector to

consider the text of [the] policy … and to interpret that text to some degree, in

terms of what she understood it to mean. In many cases the interpretation of such

a provision may be clear and even self-evident, but in other cases there may be

some lack of clarity requiring some level of engagement with the text.” (Sherwin

para. 109, emphasis added). “it was necessary for the Inspector to give some

indication as to her understanding of what the test meant, before she

moved on to her application of that test, as so interpreted, to the facts of this

planning application.” (Sherwin para. 110, emphasis added).

(vii) These requirements are not discharged merely by a planning assessment

that permission should – or indeed should not - be granted. Thus in Sherwin,

“opinion as to Block D1 comfortably sitting side by side with existing protected

structures, without detriment to their character, cannot be viewed as an implicit or

indirect assessment of compliance with policy CHC2. It appears from the sentences

which followed this opinion that the opinion is essentially based on one

consideration, that structures from different periods can co-exist within the same

land parcel etc, rather than based on the considerations expressly stipulated in policy

CHC2.” (para. 114).

51. We can note also that the test for materiality of a contravention centres on the grounds upon

which a proposed development is being or might reasonably be expected to be opposed by local

interests (Roughan v. Clare County Council (Unreported, High Court, Barron J., 18 December 1996)

as cited in Jennings v. An Bord Pleanála [2023] IEHC 14 (Unreported, High Court, Holland J., 17

February 2023)).

52. “The decision of the Commission in determining a de novo appeal, pursuant to s. 37 of the

2000 Act, must be made by reference to the development plan then in force, as per the recent

decision of this Court in Crofton [Buildings Management CLG v. An Bord Pleanála [2024] IESC 21].

This is the case irrespective of whether the Commission is determining an appeal on a first occasion

before any possible judicial review, or alternatively on remittal after a decision of the Commission

has been quashed.” Milbourne Residents Association v. An Bord Pleanála [2025] IESC 50

(Unreported, Supreme Court, Woulfe J., 27 November 2025) at 76 (Charleton, Hogan, Murray and

Donnelly JJ concurring). Hence it follows that the fact that the planning authority decision was in

respect of a previous development plan does not preclude the commission from dealing with the

appeal.

53. In regular planning, there is an elaborate procedure for a council to grant permission in

material contravention, under s. 34(6) of the 2000 Act:

“(6) (a) In a case in which the development concerned would contravene materially the

development plan or local area plan, a planning authority may, notwithstanding any other

provision of this Act, decide to grant permission under this section, provided that the

following requirements are complied with before the decision is made, namely—

(i) notice in the prescribed form of the intention of the planning authority to consider

deciding to grant the permission shall be published in at least one daily newspaper

circulating in its area and the notice shall specifically state which objective of the

development plan or local area plan, as the case may be, would be materially

contravened by granting this permission,

(ii) copies of the notice shall be given to each of the following—

(I) the applicant,

(IA) the regional assembly for the area in which the planning authority is

situated,

(II) a prescribed body which has been notified of the application by the

planning authority, and

(III) any person who has made a submission or observation in writing in

relation to the development to which the application relates,

(iii) any submission or observation as regards the making of a decision to grant

permission and which is received by the planning authority not later than 4 weeks

after the first publication of the notice shall be duly considered by the authority

(iiia) not later than 6 weeks from the publication of the notice under subparagraph

(i), the chief executive shall prepare a report for the members of the planning

authority—

(I) stating the main reasons and considerations on which the proposal to

grant permission is based,

(II) summarising the issues raised in any submissions or observations in

accordance with subparagraph (iii), and

(III) advising the members of his or her opinion regarding the compliance

or otherwise of the proposed development with any relevant Ministerial

guidelines under section 28 or any relevant policies or objectives of the

Government or Minister of the Government or with any regional spatial and

economic strategy,

and the report shall be considered by the members before a resolution is passed

under subparagraph (iv), and

(iv) a resolution shall be passed by the planning authority approving the proposal of

the chief executive to grant permission.

(b) It shall be necessary for the passing of a resolution referred to in paragraph (a) that the

number of the members of the planning authority voting in favour of the resolution is not

less than three-quarters of the total number of the members of the planning authority or

where the number so obtained is not a whole number, the whole number next below the

number so obtained shall be sufficient, and the requirement of this paragraph is in addition

to and not in substitution for any other requirement applying in relation to such a resolution.

(ba) Where a resolution referred to in paragraph (a) has been passed by a planning authority

in accordance with paragraph (b), the planning authority shall—

(i) send to the regional assembly for the area and the Office of the Planning

Regulator a copy of the notice under paragraph (a) that relates to the resolution,

and

(ii) at the same time, inform the regional assembly for the area and the Office of the

Planning Regulator in writing that the resolution was passed.”

54. The commission can also do so, although the procedures are not quite so elaborate, under

s. 37(2):

“(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section

decide to grant a permission even if the proposed development contravenes materially the

development plan relating to the area of the planning authority to whose decision the appeal

relates.

(b) Where a planning authority has decided to refuse permission on the grounds that a

proposed development materially contravenes the development plan, the Board may only

grant permission in accordance with paragraph (a) where it considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not

clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to

regional spatial and economic strategy for the area, guidelines under section 28,

policy directives under section 29, the statutory obligations of any local authority in

the area, and any relevant policy of the Government, the Minister or any Minister of

the Government, or

(iv) permission for the proposed development should be granted having regard to

the pattern of development, and permissions granted, in the area since the making

of the development plan.

(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall,

in addition to the requirements of section 34(10), indicate in its decision the main reasons

and considerations for contravening materially the development plan.”

55. The procedures under s. 37(2)(b) only apply if:

(i) the council has refused permission on grounds of material contravention; and

(ii) the commission decides to grant permission notwithstanding the material

contravention.

56. These procedures do not apply if the commission lawfully decides that a grant of permission

would not amount to a material contravention. That is implicit in para. (a) and in the reference back

to para. (a) contained in para. (b). Nor does it apply where the inspector thinks that there is a

material contravention but the commission disagrees.

57. That does not mean that a finding of non-material-contravention is immune from scrutiny,

still less that a failure to address the issues is so immune. Sherwin points the way to the necessary

pathway for consideration of issues generally, essentially:

(i) engage with the relevant text of the plan and interpret it to the extent necessary;

(ii) come to a reasoned view on contravention;

(iii) come to a reasoned view on materiality if there is a contravention; and

(iv) consider whether permission should be granted notwithstanding material

contravention, by reference to the applicable statutory procedure for that if there is

one.

58. Reasonable people could disagree about whether the legislation should be more (or less)

demanding of the commission. That said, the administrative law of reasons is there to fill some of

the gaps because where a decision-taker is disagreeing with another institutional actor, that creates

objectively a main issue that requires main reasons.

59. Another distinction of relevance is that the more elaborate procedures for material

contravention do not apply to a local area plan: Ryanair v. An Bord Pleanála [2025] IEHC 74

(Unreported, High Court, 14 February 2025).

60. However, where a plan for a particular locality is incorporated into a development plan, it

necessarily has plan-level status.

61. Operationalising the steps set out in Sherwin, there are in essence four logical steps to the

analysis (subject to contrary provision in the particular legislative context):

(i) engagement with the text of the plan alleged to have been contravened and

interpretation of the text where appropriate;

(ii) making a reasoned determination as to whether there is a contravention;

(iii) if so, making a reasoned determination as to whether it is material; and

(iv) if so, consideration of justification of the contravention through the lens of the

statutory conditions for the grant of permission notwithstanding any material

contravention, notably s. 37(2) of the 2000 Act where it applies.

62. These requirements are not satisfied by a statement that permission should be granted. By

necessary implication they cannot be satisfied either by a bald conclusion that the permission does

not materially contravene the plan. That is not to suggest any rigid formula for the wording of

decisions (for example, issues (ii) and (iii) could be dealt with together although in practical terms

there may be something to be said for dealing with issues in a methodical and granular way as set

out above).

Preliminary objections including whether the points were made at the appropriate time

63. The notice party submitted as follows:

“II. Preliminary Objections

10. Marshall has raised a number of preliminary objections in its Statement of Opposition

(§19-28 of Marshall’s Statement of Opposition). Additionally, the manner in which the

Applicant has advanced its written submissions gives rise to further objections, which are

summarised below:

(i) The Applicant consistently misrepresents the contents of the Commission Order and,

in particular, the development in respect of which planning permission was granted as being

a grant of planning permission for a 171-unit development with 269 car parking spaces. The

Commission Order grants planning permission for a 170-unit development with 266 car

parking spaces, namely the revised development proposal contained in the plans and

particulars lodged with the First Party Appeal. This is entirely clear from the First-Party

Appeal, the Inspector’s Report, and the Commission Order. Furthermore, it is clear that the

Applicant, at all material times, understood that the First Party Appeal related to a reduced

development (See §1.2 of the Applicant’s own submission to the Commission dated 30

September 2024).

(ii) The Applicant has responded to this issue in his submissions by calling into question

whether the Architectural Design Statement of Mr Flemming was before the Commission (§1

of the Applicant’s Submissions). This submission is not understood, as that document is

exhibited at Tab 2 of Exhibit BL1. It appears to be the Applicant’s case that because it was

not contained in Tab 1 of Exhibit BL1, there is a question mark over whether it was before

the Commission. This concern is easily resolved for two fundamental reasons: (1) the

document is stamped as received by the Commission, and (2) the Applicant’s own

submission to the Commission referred to the reduced car parking. Further, the Inspector’s

report expressly calls out that there has been a reduction in units (see: §8.3.2, §8.5.12,

§8.6.10, §9.2, §12.2, §14.1 and Appendix 3 of the Inspector’s Report). Therefore, it is

without question that the Commission granted permission for a 170-unit development with

266 car parking spaces.

(iii) The Applicant also tries to say that there is some confusion over visitor car parking

spaces, but this isn’t correct either. The total amount of car parking is 266 spaces, and this

is broken down on page 7 of the Architectural Design Statement as follows:

Car Parking No. of Spaces

Maisonettes (on street parking) 16

2, 3 and 4 beds (in-curtilage parking) 236

Visitor spaces 7

Creche (of which 1 is accessible) 7

_____________________________________________

Total 266

(iv) In that regard, it is difficult to understand the approach of the Applicant in these

proceedings. He made submissions during the planning process, which demonstrated that

he understood that revisions had been made to the development as part of the appeal to

the Commission. However, the case as pleaded in the Statement of Grounds demonstrates

that he has misunderstood the decision made by the Commission. Even though this has

been pointed out to him, he appears not to accept that he has misunderstood the terms of

the grant of planning permission. This inconsistent and unclear approach of the Applicant

ought to be considered, if necessary, in the context of any exercise of discretion by this

Honourable Court.

(v) All of the grounds of challenge advanced in the Statement of Grounds, are matters

which are raised for the first time in these proceedings and are not matters upon which the

Applicant made submissions to the Council and / or the Commission, and no explanation has

been provided for why such issues were not raised before the Council and/or the

Commission. In such circumstances, the Applicant is precluded from challenging the decision

of the Commission by reference to matters not previously raised as part of the public

consultation process. Further, and/or in the alternative, in these circumstances, if this

Honourable Court determines that any of the grounds of challenge should be upheld, it

should exercise its discretion to refuse the relief sought (see, for example, Friends of the

Irish Environment CLG v. Government of Ireland [2021] IECA 317 at §277, Friends of the

Irish Environment CLG v. An [Coimisiún] Pleanála [2026] IEHC 205 §§44 – 57 and Liffeyfield

Limited v. An Coimisiún Pleanála [2026] IEHC 186 §§49 – 71). This issue is addressed in

greater detail in respect of the consideration of each Core Ground.

(vi) Marshall takes objection to the repeated assertions of merit-based complaints and

assertions which are impermissibly advanced in the Statement of Grounds, and which are

not substantiated by any expert evidence. Where such issues arise, it is specifically

addressed in the particulars of opposition pleaded by Marshall below.

(vii) The application for Judicial Review (related to Core Grounds 1-4) proceeds on the

basis that the Commission granted planning permission for a development which includes

too many car parking spaces. However, it is apparent from the submissions made to the

Council and the Commission on behalf of the Applicant (reflected at §37 of the Grounding

Affidavit) that the position adopted by him in the planning process was, in fact, to the

opposite effect and raised concerns as to a lack of parking provision for the creche (which

comprises part of the Proposed Development) and that the parking fell below the

requirements of the Development Plan. In other words, the Applicant objected to the grant

of planning permission for the proposed development on the basis that it included too few

car parking spaces. Furthermore, and contrary to what is now advanced in respect of Core

Ground 2, the Applicant’s submissions to the Council acknowledge that while provisions

existed to reduce parking if a development is adjacent to a high-frequency bus route, that

same did not apply here (also reflected at §37 of the Grounding Affidavit).

(viii) The Applicant is not entitled to make submissions before a decision-maker by which

he objects to the proposed development on the basis of insufficient car parking and then,

subsequently, in judicial review proceedings, maintain that the decision-maker granted

permission for too many car parking spaces. Similarly, the Applicant is not entitled to make

submissions before a decision-maker in relation to the inapplicability of provisions to reduce

car parking and then, in these proceedings, advance the case that such provisions do apply.

Therefore, the Applicant does not have standing to pursue such complaints in these

proceedings and/or in the alternative, the Court ought, in the exercise of its discretion,

refuse to grant the relief sought by the Applicant, having regard to the nature of the position

adopted by the Applicant in the planning process and the contrary position adopted by him

in these proceedings. The making of submission which are inconsistent with pleaded points

disqualifies an applicant in terms of obtaining certiorari (AAI Baneshane v An Coimisiún

Pleanála [2025] IEHC 641 at §53(iii) and §123(v)).

(ix) The Applicant has also raised issues in these proceedings regarding technical matters

which in effect, plead a failure of expertise on the part of the Commission without providing

any expert evidence to this Court to controvert the findings made by the Commission and

its Inspector. In that regard, the Applicant has failed to discharge the burden of proof and

is not entitled to any relief (see Reilly at §69).

(x) In respect of Core Grounds 5-7, the Applicant has failed to positively disclose all

facts relevant to the application and has failed to refer to the ‘Conservation Objective Series’

prepared by the NPWS in respect of each of the relevant European sites referred to in those

grounds of challenge. Noting the obligations arising from Order 103 RSC as regards

pleadings and the disclosure of relevant facts, Core Grounds 5- 7 ought to be dismissed in

limine and /or the Court ought, in the exercise of its discretion, refuse to grant the relief

sought by the Applicant.

(xi) Finally, the Applicant has delivered written submissions 21 April 2026, but those

submissions do not readily engage with the pleaded case of the Applicant in respect of Core

Grounds 5-7, and he impermissibly seeks to extend the pleaded grounds of challenge. The

extent to which the Applicant addresses matters in his written submissions which do not

form part of the pleaded case is significant, and it is well-established that the Applicant is

not entitled to expand his case by way of written submissions: see, by way of example, 100

Meters Tall Group v. An Bord Pleanála [2025] IEHC 42, at §38. As the Applicant has no

entitlement to maintain grounds of challenge in respect of which he was not granted leave,

these submissions directly correspond to the pleaded case made by the Applicant.”

64. For reasons which will become apparent it is not necessary to decide on these objections,

save as to whether relief should be refused by reason of the alleged omission of the material

contravention of the drawing at the GUFP section 7.0 from the applicant’s submissions. I deal with

this below.

65. The State submitted as follows:

“PRELIMINARY OBJECTIONS

Errors in Pleading

5. The State Respondents have identified by way of preliminary objections a number

of errors in the Applicant’s pleadings in the Statement of Grounds as set out at paragraphs

8 to 11 of the Statement of Opposition.

6. The Applicant has omitted wording from the declaratory reliefs sought and Core

Grounds 6 and 7 and it is presumed that the Applicant intended to include the word

‘objectives’ and that the Grounds should read ‘…(a) by failing, to have in place site specific

conservation [objectives]…’.

7. Further the Applicant claims that there is an absence of site-specific conservation

objectives and conservation measures for the ‘Inner Galway Special Protection Area’ and

‘Inner Galway Complex SAC’, where neither ‘Inner Galway Special Protection Area’ nor ‘Inner

Galway Complex SAC’ exists, this is denied and the Applicant is not entitled to the reliefs as

sought.

8. Without prejudice to the foregoing, the State Respondents have assumed that the

Relief sought at D3 and Core Ground 6 is supposed to be a reference to the Inner Galway

Bay SPA (Site Code 004031) and that the Relief sought at D4 and Core Ground 7 is supposed

to be a reference to Galway Bay Complex SAC (Site Code 000268) and the Statement of

Opposition was pleaded on that basis.

9. As set out at paragraph 11 of the Statement of Opposition, although Core Grounds

6 and 7 are pleaded under the heading ‘Non-Transposition’, the State Respondents note that

Core Grounds 6 and 7 as pleaded, and paragraphs 49 of the Statement of Grounds have not

in fact alleged any failure to properly transpose the Birds Directive or the Habitats Directive.

The requirements of the Birds Directive and the Habitats Directive have been fully transposed

into Irish law by SI No. 477 of 2011, the European Communities (Birds and Natural Habitats)

Regulations 2011, as amended (the ‘2011 Regulations’) and by Part XAB of the Planning and

Development Act, 2000, as amended and more recently by Part 6 of the Planning and

Development Act 2024 (not yet commenced) for decisions under that Act. There are no

particulars alleging a failure to properly transpose Articles 3 and 4 of the Birds Directive or

Articles 4 and 6 of the Habitats Directive into national law or any challenge to the validity of

a statutory provision. It is therefore submitted that the Applicant is not entitled to any relief

in respect of any alleged non-transposition which is denied.

Insufficient Particulars / Submissions

10. As set out at paragraph 4 of the Statement of Opposition, the State Respondents

have raised a preliminary objection that the grounds pleaded as against the State

Respondents at Core Grounds 6 and 7 are not pleaded with sufficient particularity as required

by Order 84, rule 20(3) and Order 103, Rule 14 of the Rules of the Superior Courts, and

ought to be refused on that ground alone. The Applicant has merely advanced one single

paragraph at paragraph 49 of the Statement of Grounds:

49. The Second, Third and Fourth Named Respondents have acted in breach of the Birds

and Habitats Directive in failing to provide for site specific conservation objective and site

specific conservation measures for the Inner Galway Special Protection Area and Inner

Galway Complex SAC.

11. Similarly to what Humphreys J described in Wild Ireland Defence CLG v An Coimisiún

Pleanála & Ors [2025] IEHC 726 at §116, the sub-grounds for Core Grounds 6 and 7 are

‘threadbare’ to say the least.

12. The Applicant’s written legal submissions have not set out any authorities relied upon

to support Core Grounds 6 and 7 or to demonstrate any entitlement to the declaratory reliefs

sought at D3 and D4. The height of the submissions advanced by the Applicant is one

paragraph at paragraph 67 of the written submission:

‘CORE GROUND 6 AND 7

67. The Applicants also seek relief against the State Respondents concerning both the

absence of SSCO (both those admitted and also the vague objectives are not adequate to

be SSCO) and also the absence of adequate conservation measures.’

13. It is submitted that the Applicant is not entitled to the relief sought having regard to

the paucity of the unparticularised pleadings and the submissions put forward by the

Applicant.

Confined to the Pleadings

14. It is submitted that it is settled law that the Applicant is also confined to the four

corners of their pleadings and to the case as pleaded as against the State Respondents. The

pleading requirements in judicial review proceedings are ‘stringent’ (See Wild Ireland

Defence CLG v An Coimisiún Pleanála & Ors [2025] IEHC 726 at §58(i) and(ii) and also

McGowan v An [Coimisiún] Pleanála [2025] IEHC 405 at §51 and the case law referred to

therein). Having regard to those settled principles of pleading, it is submitted that the

Applicant is not now permitted to advance any unpleaded case in respect of site specific

conservation objectives or conservations measures in either Core Grounds 6 and 7 or in Core

Ground 5 in so far as it relates to the case as against the State Respondents.

15. The case as pleaded is an alleged failure to have in place any site specific

conservation objectives or conservation measures for Inner Galway Bay SPA (Site Code

004031) or Galway Bay Complex SAC (Site Code 000268). The pleaded allegation, and the

case the State Respondents had to meet, was an alleged absence or no site specific

conservation objectives or conservation measures at all. The Applicant has sought to

impermissibly expand its case in the written legal submissions to now mount a new allegation

that rather than an alleged absence of SSCOs that ‘the vague objectives are not adequate

to be SSCO’.

16. The pleadings are important here and as stated by Humphreys J at §77 of Rural

Residents Wind Aware and Environmental Group and Ors -v- An Coimisiún Pleanála and Ors

[II] [No. 2] [2026] IEHC 136 - ‘We need to keep the pleaded case firmly in mind’. The only

allegation to answer is whether there is an ‘absence’ of site specific conservation objectives

and conservation measures for Inner Galway Bay SPA (Site Code 004031) and Galway Bay

Complex SAC (Site Code 000268). It is submitted that the pleaded case has in fact been

entirely answered by the State Respondents.

17. The Applicant has no pleaded case impugning the validity of the SSCOs or the

adequacy of the conservation measures in place for Inner Galway Bay SPA (Site Code

004031) and Galway Bay Complex SAC (Site Code 000268) and is not now permitted to

advance such a case in written submissions where that has not been previously pleaded.

18. Similarly in respect of Core Ground 5, the State Respondents endorse paragraph 93

of the Commission’s submissions which highlights that the Applicant’s submissions now

‘maintain a variety of complaints which simply were not pleaded’:

• SSCOs for qualifying interests (in particular for the Inner Galway Bay SPA) are vague

and insufficiently precise to amount to conservation objectives, as they are not defined by

reference to sufficiently precise measurable targets of quantitative nor even sufficiently

precise qualitative standard to be amount to adequate conservation objectives.

• inadequate surveys for black headed gulls.

• not appropriate to interpret the scope of protection of qualifying interests as being

only within portions of the SAC but extends to the entire SAC (and indeed outside its

boundaries in certain instances).

• no full consideration of all Annex I and Annex II species and no consideration of

migratory birds in that context.

19. The Second Affidavit of the Applicant sworn on 12 March 2026 has similarly

impermissibly sought to expand the pleaded case and further consists of mere assertions by

the Applicant himself seeking to impugn the SSCOs and conservation measures and is not

supported by any admissible expert or other evidence. Without prejudice to the primary

submission that the adequacy of the SSCOs or conservation measures does not arise from

the pleaded case, the onus of proof of any alleged inadequacy of the SSCOs or conservation

measures cannot be discharged by mere assertion and cannot be discharged by non-expert

opinion of the Applicant (See Joyce Kemper v An Bord Pleanála [2020] IEHC 601 §9; Murphy

v An Bord Pleanála [2024] IEHC 59; Massey v An Bord Pleanála (No. 2) [2025] IEHC 206).

Inner Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site Code

000268).

20. Contrary to the erroneous assertion in the pleaded case that there is an absence of

SSCOs and conservation measures, the Statement of Opposition and Affidavits of Deirdre

Lynn and Sarah Uí Bhroin have set out the SSCOs and conservation measures for Inner

Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site Code 000268).

The State Respondents rely on the relevant paragraphs of the Statement of Opposition and

the Affidavits for the purpose of the within written submissions and do not intend to repeat

those paragraphs herein.

21. It is submitted that at the time of the decision the subject matter of the within

proceedings site-specific conservation objectives were established for all of the qualifying

interests in the Inner Galway Bay SPA, except for the Black-throated diver. It is denied

that there is any other legal flaw with the site-specific conservation objectives established

for the Inner Galway Bay SPA. The Applicant’s general allegation of an absence of SSCOs

for the Inner Galway Bay SPA is denied, indeed, the Applicant did not even make reference

to the Black-throated diver in its pleadings. Further, it ought not be acceptable for an

Applicant to plead this aspect of the case at the level of generality done without making any

reference whatsoever to the nature and contents of the SSCO in place and not making the

case out with any degree of specificity beyond general allegation.

22. It is submitted that at the time of the decision the subject matter of the within

proceedings site-specific conservation objectives were established for all of the qualifying

interests in the Galway Bay Complex SAC, except for ‘1230 Vegetated sea cliffs of the

Atlantic and Baltic coasts’ or the ‘8240 Limestone Pavements’. It is denied that there is any

other legal flaw with the site-specific conservation objectives established for the Galway Bay

Complex SAC. The Applicant’s general allegations of an absence of SSCOs for Galway Bay

Complex SAC are denied and, indeed, the Applicant did not even make reference to the

Vegetated sea cliffs of the Atlantic and Baltic coasts or the Limestone Pavements in its

pleadings.

23. The Applicant’s case pleads both that there has been a failure ‘to provide’ for site

specific conservation measures for the Inner Galway Bay SPA and Galway Bay Complex SAC

and that the ‘necessary conservation measures’ have not been put in place. The plea that

there are ‘no’ conservation measures has been replied to in fact there are as set out in the

Statement of Opposition and Affidavit of Sarah Uí Bhroin. At no point does the Applicant

plead what the necessary conservations measures are, nor at any point does the Applicant

advance any pleaded case at all as to what defects there are in the conservation measures

already in place nor does the Applicant make any attempt at all to actually legally assail the

position in fact, but simply and generically alleges that nothing is in place. It is submitted

that there is therefore no ‘absence’ of conservation measures as alleged by the Applicant.

24. The Applicant has not established that the conservation measures identified are

inadequate or insufficient in relation to the conservation requirements of the species. The

Applicant has not particularised or advanced submissions supported by evidence in respect

of any alleged inadequacy of the conservation measures in place and has not met the

threshold or burden of establishing that the conservation measures in place are inadequate

so as to entitle the Applicant to the relief sought in respect of conservation measures. It is

submitted however that the fact of the adoption of conservation measures for the Inner

Galway Bay SPA (Site Code 004031) and Galway Bay Complex SAC (Site Code 000268) has

answered the Applicant’s pleaded case entirely.

25. The Applicant has not referred to any authority in the written submissions relied

upon under Core Grounds 6 and 7 for impugning the conservation measures in place or to

support any contention that there has been a failure by the State Respondents in respect of

obligations under EU law to establish conservation measures.

26. In Case C-444/21 Commission v Ireland ECLI:EU:C:2023:524 the CJEU also held

that for the sites in which Ireland contended that conservation measures had been adopted

that the Commission had not established that the conservation measures did not correspond

to the conservation objectives subsequently established or had not established that the

conservation measures did not meet the requirements of Article 6(1).

‘161 In the present case, as regards the 44 sites which it considers to have had a complete

set of conservation measures, the Commission has not shown that the specific conservation

measures adopted by Ireland did not correspond to conservation objectives defined after the

adoption of those measures.

162 In those circumstances, it must be held that the mere fact that conservation measures

were adopted for the sites of Community importance at issue before the conservation

objectives had been defined does not constitute an infringement of Article 6(1) of the

Habitats Directive, with the result that the Commission has not established, for the 44 sites

concerned, that the conservation measures adopted did not meet the requirements of that

provision.’

27. It is submitted that similar to Commission v Ireland, the Applicant has not

established that the conservation measures in place are inadequate or have not met the

requirements for the sites. In Wild Ireland Defence CLG v An Coimisiún Pleanála & Ors

[2025] IEHC 726 at §118, Humphreys J noted that the Applicant ‘just baldly pleads that

there are no measures’ and in circumstances where an affidavit is sworn on behalf of the

State Respondents to set out the conservation measures, the onus falls on the Applicant to

displace that. The Court concluded at §160(viii) in Wild Ireland Defence that the Applicant

had failed to discharge the evidential onus to show anything unlawful about the conservation

measures. Therefore, it is submitted that the Applicant is not entitled to any relief as sought

in respect of the alleged failure to establish conservation measures for the Inner Galway Bay

SPA (Site Code 004031) and Galway Bay Complex SAC (Site Code 000268).

28. It is submitted that the Applicant is not entitled to the general declarations as sought

in the Statement of Grounds as site-specific conservation objectives were established for the

other qualifying interests at the time of the impugned decision and the necessary

conservation measures were established. Further, it is not accepted that declaratory relief

is required, nor is it accepted that the Applicant would be entitled to costs in this respect,

given the manner of the pleadings and the detail of the allegations made.”

66. For reasons that will become apparent it is not necessary to deal with this in detail. In

general I agree with the State that it would be inappropriate to grant declaratory relief in relation to

highly specific transposition issues when these were not pleaded expressly, so I will not do so. In

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28, [2024] 7

JIC 0402 (Unreported, Supreme Court, 4 July 2024), per Murray J. (O'Donnell C.J., Woulfe, Collins

and Donnelly JJ. concurring), the Supreme Court emphasised that complex EU law arguments need

to be articulated on the pleadings with particular clarity.

67. More generally, the parties’ positions on whether the applicant’s points were made at the

appropriate time as recorded in the statement of case are summarised as follows:

“(i) points contended to be referenced in submissions/affidavits/ statement of case/

otherwise in the proceedings (excluding pleadings) but not made in the process and not

pleaded;

Commission’s Position

35. In its written submissions, the Applicant introduces a number of new matters into

the proceedings which were not pleaded in the Applicant’s Statement of Grounds, nor were

they made as part of the process before the Commission. In particular, the Applicant

advances an entirely new argument (Applicant’s written submissions at §26-§40, §42, and

§44-§45) about the location of the Proposed Development, which is categorised as a ‘High

Capacity Public Transport Node or Interchange’, for the purposes of advancing an argument

that the Proposed Development is within the scope of SPPR 3 based on being at an accessible

location (it is not).

36. The Commission’s Inspector recommended refusing permission to the Proposed

Development for two stated reasons as they relate to road and/or traffic safety (Reasons

No. 2 and No.3). The Applicant introduces a new point to the effect that the two reasons

actually comprise seven sub-reasons which the Commission was required to individually

address in disagreeing with the recommendation of its Inspector (Applicant’s written

submissions at §48-§50). These ‘seven reasons’ were not pleaded in the Statement of

Grounds.

37. Following the decision of the Supreme Court in Coolglass Wind Farm Limited v An

Coimisiún Pleanála [2026] IESC 5, the Applicant introduces a number of new points

(Applicant’s written submissions at §57-§58) in an attempt to distinguish the facts herein

from the decision in Coolglass. This is a significant departure from the limited plea in the

Statement of Grounds that there was a failure to have regard to the Climate Action Plan

2024.

38. Finally, at Core Ground 5 the Applicant expands on the case pleaded in the

Statement of Grounds beyond recognition (Applicant’s written submissions at §59-§66). The

Applicant’s submissions now maintain a variety of complaints which simply were not pleaded

and cannot be maintained, namely:

o SSCOs for qualifying interests (in particular for the Inner Galway Bay SPA) are vague

and insufficiently precise to amount to conservation objectives, as they are not defined by

reference to sufficiently precise measurable targets. of quantitative nor even sufficiently

precise. qualitative standard to be amount to adequate conservation objectives.

o Inadequate surveys for black headed gulls.

o Not appropriate to interpret the scope of protection of qualifying interests as being

only within portions of the SAC but extends to the entire SAC (and indeed outside its

boundaries in certain instances).

o No full consideration of all Annex I and Annex II species and no consideration of

migratory birds in that context

State’s Position

39. In respect of Core Grounds 5, 6 and 7. The Applicant is not permitted to advance

any unpleaded case in respect of Site Specific Conservation Objectives or Conservation

Measures by way of written submissions or the Statement of Case. The case as pleaded is

an alleged failure to have in place any site specific conservation objectives or conservation

measures for Inner Galway Bay SPA or Galway Bay Complex SAC. The pleaded allegation,

and the case the State Respondents had to meet, was an alleged absence or no site specific

conservation objectives or conservation measures at all. The Applicant has sought to

impermissibly expand its case in the written legal submissions and Statement of Case to

now mount a new allegation that rather than an alleged absence of SSCOs that ‘the vague

objectives are not adequate to be SSCO’. The Applicant further seeks to now advance an

unpleaded case that ‘purported site-specific conservation objectives for of the qualifying

interests (in particular for the Inner Galway Bay SPA) are vague and insufficiently precise to

amount to conservation objectives. There are not defined by reference to sufficiently precise

measurable targets. of quantitative nor even sufficiently precise. qualitative standard to be

amount to adequate or valid conservation objectives’. The Applicant has no pleaded case

impugning the validity of the SSCOs or the adequacy of the conservation measures in place.

Notice Party’s Position

40. The Applicant impermissibly attempts to advance un-pleaded complaints in respect

of Core Ground 5-7 by way of written submissions and this statement of case. In particular,

the Applicant seeks to advance the following un-pleaded claims that:

• the existing SSCOs are ‘vague and insufficiently precise’ and therefore do not

amount to SSCOs (§62 of the Applicant’s Submissions).

• the level of winter bird surveys carried out by Marshall are insufficient (§63 of the

Applicant’s Submissions).

• There was no consideration of Annex I and Annex II species in the NIS/rNIS or by

the Commission, or no consideration of migratory birds in that context (§66 of the Applicant’s

Submissions).

Applicant’s Position

1. It is not accepted that the Applicant has introduced any number of new matters not

pleaded on a fair reading pleadings and in response to matters raised in Opposition papers.

2. The Applicant is not introducing a new point to the effect that the two reasons

actually comprise seven sub-reasons; that is simply an analysis of the reason itself and this

objection is confusing appropriate matters for legal submission with pleading requirement.

Similar confusion relates to an objection of ‘entirely new argument’ relating to SPPR 3;

pleadings are not for ‘legal arguments’. Arguments, relating to the subsequent Supreme

Court judgment in Coolglass, could not have been pleaded nor would have they appropriate

to plead matter of legal submissions. Core Ground 5 has not been expanded: the written

submission are in response to the Opposition papers of the Respondents/Notice Party which

seek to characterise certain objectives as SSCOs when the Applicant has pleaded that these

are generic objectives as pleaded. A legal argument that these are too vague to amount to

SSCOs and are therefore generic objectives, is not an expansion of the case.

(ii) points contended to have been made in the process, but not pleaded;

Commission’s Position

3. The Applicant made a submission to the planning authority, Galway County Council

as well as a further submission to the Commission on appeal, dated 30 September 2024.

Both submissions were prepared by Padraic Hession & Associates. While the submissions

raised certain points to do with the Gurraun [sic] UFP, design, road layout, open space, the

points identified in the Applicant’s pleaded case were not raised, specifically the issues

relating to material contravention (Core Ground 1), failure to apply SPPR3 in the 2024

Guidelines (Core Ground 2) and failure to have in place site-specific conservation objectives

(Core Grounds 6 and 7).

4. There are certain additional matters which the Applicant raised before the

Commission which do not appear to be pleaded, in any respect. For example, the Applicant

made a point to the Commission that the Proposed Development is premature given the

area in which it is located is without amenity.

5. In addition to the foregoing, the Applicant’s submissions to the Commission about

the car parking provision at the Proposed Development are inconsistent with the pleas

advanced by the Applicant at Core Grounds 1 and 2 of the Statement of Grounds. Before

the Commission the Applicant complained that insufficient car parking provision had been

provided for the creche. At Core Grounds 1 and 2, the Applicant completely inverts this

argument to the effect that the car parking provision at the Proposed Development is far in

excess of the maximums provided in SPPR 3. While the point may have been raised in the

process, the Applicant argues the total opposite before the Commission to that which he

advances in these proceedings. Furthermore, as set out above, the Applicant did not raise

any issue with respect to SPPR 3 in his submissions to the Commissions.

State’s Position

6. Not applicable to Core Grounds 6 and 7 as pleaded against the State Respondents.

Notice Party’s Position

7. The Applicant made submissions to the Council and the Commission. In the

Applicant’s submission to the Council (made by his Planning Consultant) six points were

raised:

(i) Gurran [sic] Urban Framework Plan (‘GUFP’) – raising concerns regarding Greenway,

Density, and Prematurity

(ii) Roads – raising complaints regarding DMURS and alleging deficiency in cycle lanes

and pedestrian routes

(iii) Open Space – raising complaints that the public open space provision was deficient

(iv) (4) Creche – raising complaints of lack of car parking and that the provision to reduce

car parking did not apply

(v) Design – raising complaints of alleged low quality design

(vi) Transport Connection – raising concerns relating lack of adequate public transport.

None of those points are raised in the terms alleged in the Statement of Grounds (addressed

in greater detail at point (iv) of section H).

8. In the Applicant’s submission to the Commission (made by his Planning Consultant)

seven points were raised. The first six points reflect the six points made in the submissions

to the Council and addressed above. The seventh point raised, related to appropriate

assessment screening concerning the Inner Galway Bay SPA and the Galway Bay Complex

SAC which raised alleged concerns regarding the Curlew, Kestrel and Redwing birds. This

seventh point is also not raised in the terms alleged in the Statement of Grounds (addressed

in greater detail at point (iv)).

Applicant’s Position

9. All of the grounds were raised insofar as it was possible in the submissions; in any

case the matters concern autonomous duties on the Commission and there is no requirement

to raise such matter and others were not capable of being raised such as inadequate reasons.

In addition to raising material contravention matters, the submission referred to a car

dominated development, which is directly in conflict with the principals of the GUFP to

`deliver a truly public transport focused settlement (1.3) and ‘…urban car dominated

development, directly in conflict with the GUFP’ (5.0) (core ground 1) and cited reason 2

and 3 of the planning authority concerning material contravention. The Applicant has not

inverted its submission re car parking, as the submission was in the context of the creche

itself being inadequate in scale and in that context also observing car parking provision for

the creches was also not in accordance with national guidelines relating to creches. Moreover

the submission had expressly objected to the car borne nature of the development and

excessive car parking spaces reflects the same.

(iii) points contended to be referred to narratively/contextually in the pleadings but without

any properly formulated legal plea;

Commission’s Position

10. The Commission does not understand that any point referred to

narratively/contextually in the pleadings but without being properly formulated legal plea is

at issue in the proceedings.

State’s Position

11. Not applicable to Core Grounds 6 and 7 as pleaded against the State Respondents

Notice Party’s Position

12. The Notice Party adopts the position of the Commission.

Applicant’s Position

13. Does not arise.

(iv) points contended to have been pleaded but not made by the applicant in the process;

Commission’s Position

14. In his submissions to the Commission, the Applicant did not make the specific

complaints he now advances at Core Grounds 1-7 of the Statement of Grounds. At Core

Grounds 1 and 3 the Applicant alleges material contravention of the Development Plan. This

was not advanced before the Commission. Insofar as the submissions raised such issues

such as design and road layout, these were not framed as material contravention of the

Development Plan.

15. At Core Ground 4, the Applicant alleges a failure on the part of the Commission to

give adequate reasons and/or to take into account relevant considerations and/or acted in

breach of s.15 of the Climate and Low Carbon Development Act 2015 as amended, in stating

its decision was consistent with the Climate Action Plan 2024. The Applicant’s submissions

to the Commission were entirely silent on the issue of CAP-24.

16. The Applicant’s pleas at Core Grounds 5-7 allege a failure with respect to SCCOs at

Inner Galway Bay SPA and the Galway Bay Complex SAC. These pleas are a complete

departure from the extremely general concerns raised by the Applicant about the SPA and

SAC (and more particularly the impact on the Curlew, Kestrel and Redwing birds) in his

submissions to the Commission.

17. At Core Grounds 1 and 2, the Applicant advances a completely different argument

to that raised in his submissions to the Commission. In his submissions to the Commission,

the Applicant complained that insufficient car parking provision had been provided for the

creche. However in these proceedings the Applicant inverts this argument to the effect that

the car parking provision at the Proposed Development is far in excess of the maximums

provided in SPPR 3. The Applicant did not raise any issue with respect to SPPR 3 in his

submissions to the Commission.

State’s Position

18. Not applicable to Core Grounds 6 and 7 as pleaded against the State Respondents.

Notice Party’s Position

19. It is Marshall’s position that none of the grounds of challenge raised in these

proceedings were raised during the planning process by the Applicant.

20. Core Ground 1 and 3 concern complaints of material contravention of the

Development Plan and the Applicant made no submissions alleging material contravention

during the planning process.

21. Core Ground 2 concerns SPPR3 of the Compact Settlement Guidelines and relates to

a complaint that the Proposed Development has too much car parking and relatedly the

Applicant alleges a breach of Section 15 of the 2015 Act in Core Ground 4 on the same basis.

No submissions were made by the Applicant in respect of SPPR3 or Section 15.

22. However, and more significantly, the Applicant made inconsistent submissions to the

Council and Commission to what are maintained in these proceedings. Before both the

Council and the Commission the Applicant maintained that too little car parking was being

provided in respect of the Creche and that provisions requiring reduced parking did not

apply.

23. Core Grounds 5-7 concern complaints related to alleged absence of SCCOs/

conservation measures in respect of Inner Galway Bay SPA and the Galway Bay Complex

SAC. The Applicant made no submissions during the planning process regarding these issue

and raised a complaint (not maintained in these proceedings) that alleged concerns

regarding the Curlew, Kestrel and Redwing birds.

Applicant’s Position

24. The Applicant engaged an expert (Hession) who made a submission on his behalf

both to the planning authority 19th [July] 2024 and to the Commission of 30th September

202,4 In the second submission to the Commission, the Applicant relied on the reasons for

refusal by the planning authority including finding material contraventions of the

development plan and said these have not been addressed in the appeal and apply to the

proposed development. Section 1.1 cited and expanded on reason given of materially

contravene policy objectives LUPT1, WC1, WC3, GBW171 and DM Standards 28 and 33 of

the Galway County Development Plan 2022-2028 and also Section 2.1 where the reason

cited that the development would ‘…negatively impact on road and pedestrian safety which

was also stated in the recommendation of the inspector. In the second submission of 30th

September 2024 to the Commission, the Applicant relied on the reasons for refusal by the

planning authority in particular finding material contraventions of the development and

affirmed the same in its submission before the Commission. In addition, the submission

referred to a car dominated development, which is directly in conflict with the principals of

the GUFP. The original submission to be planning authority also 19th July 2024 also raised

many of the issues in substance It is therefore incorrect for the Commission or Notice Party

to state core ground 1 to 7 were not raised in the submissions. Inadequate reasons is a

matter which can only arise post decision, but in case, the reasons given by the planning

authority were also reflected in the recommended reasons of the inspector and the

submission has said the appeal/development had not addressed the same. The submission

had raised material contravention of the development plan and Garraun Urban Framework

Plan as incorporated; the car borne nature of the development in breach of the Framework

Plan (and the excessive car parking spaces reflects the same). The submission referred to

screening for AA by reference to the Inner Galway Bay SPA and the Galway Bay Complex

SAC. The failure of the State to designate SSCOs is not a matter which the Commission

could address and so it not a matter which required or was appropriate to be address in its

submission to the Commission

(v) points contended to have been both made in the process and also pleaded;

Commission’s Position

25. The Commission acknowledges that certain issues were identified in the Applicant’s

submissions on appeal but the substance of the Applicant’s pleaded complaints were not

made to the Commission

State’s Position

26. Not applicable to Core Grounds 6 and 7 as pleaded against the State Respondents.

Notice Party’s Position

27. The Notice Party does not accept that any points pleaded were made in the planning

process and refers to its position on point (iv) above which are incorporated here by

reference.

Applicant’s Position

28. All of the matters pleaded, were raised in submissions insofar as it was possible and

appropriate to do so.”

68. It is not necessary to address the vast majority of these points. The two points I will address

are as above, viz., whether relief should be refused by reason of the applicant not having made a

developed case about the material contravention of the GUFP drawing in submissions (No) and

whether relief should be granted regarding transposition shortcomings that were not expressly

pleaded (also No). These are addressed further below.

Domestic law issues

Core ground 1 – contravention of development plan and related instruments

69. Core ground 1 is:

“1. The impugned decision of the First Named Respondent made on the 30th January

2025 LH07.320747 is invalid as it erred in deciding that the proposed development was in

accordance with and/or would not materially contravene the Garraun Urban Framework Plan

contained in Volume 2 of the Galway County Development Plan 2022-2028 including GUFP

10 and Policy objectives PM1, PM5, PMG, PM8, PM 13 and UL2 and Development

Management Standards DM1 in the 2022-2028 plan and/or misinterpreted the Garraun

Urban Framework Plan and/or failed to take into account relevant considerations and/or

gave inadequate reasons (including for disagreeing with its inspector in breach of section

34(10(b) of the 2000 Act as amended) in deciding that the proposed development was in

accordance with the Garraun Urban Framework Plan”

70. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant’s Position

30. The proposed development is a car borne development involving either 269 or 266

car parking 7 spaces (which exceeds the maximum for accessible locations under the

Sustainable Residential Compact Settlement Guidelines as pleaded at core ground 2) and

with inadequate pedestrian and cyclist facilities. The proposed development does not

therefore accord with the policies and objectives of the UFP and GUFP 10 and/or materially

contravenes the same. The planning authority, the Applicant, other members of the public

and An Taisce, all raised issues concerning the car borne nature of the development as being

incompatible with the public transport focused nature of the settlement under the UFP. The

Commission did not consider this fundamental nature of the plan led development envisaged

under the UFP and GUFP 10 at all nor did it give any reasons which address the car borne

nature of the development.

31. Section 7, contains the Framework Masterplan and pg. 36 refers ‘Key Features of

the Framework Masterplan’ which is shown on the drawing at pg. 37. Among the key

features within the site of the proposed development comprise those marked on the map at

item 1, 7, 10, 13, 17 which include: 7 Green Spines; 13 Vehicular Access points; 17

secondary streets. The proposed development is not in accordance with any of the key

features indicated for the site, where the secondary street is a continuous street (17) and

not broken into stagger junctions; the green spine is not replicated in the proposed

development and the condition of the trees is irrelevant as the green spine at (7) is a matter

of design and not about retention of existing trees (the green spine could be subject to

replanting). Furthermore, the vehicular access point to the site was to form part of a

continuous street and not a separate. In addition, the Commission did not address and/or

give any other reasons for:

- submitted layout is design in the form of cells/ blocks and housing is provided within

these

- the layout of the development along the R338 does not provide for a strong frontage

but instead has a linear park which another departure from the plan

- The proposed development is designed as a standalone scheme with little indication

as to how it will integrate with adjoining areas.

- In addition the UFP does not show a central open space, but a linear park on the

western and northern periphery of the site

- The lack of variation in the character of the houses

32. The Commission therefore erred in considering the proposed development was in

accordance with the UFP and/or the Board misinterpreted the framework including the

framework drawing at pg. 38 of the plan and/or failed to take into relevant consideration

and/or gave inadequate reasons. The Commission further erred in failing to taken into

account the cumulative differences between the proposed development and UFP.

Commission’s Position

33. There was no failure on the part of the Commission to consider or have regard to

the policies of the UFP and GUFP 10 in reaching its Decision. Rather the Commission carried

out a comprehensive assessment of the Proposed Development and expressly addressed the

requirements of the Garraun UFP, including urban design, placemaking, public realm, layout

and design. The Commission went onto to determine that, subject to compliance with

specified conditions, the Proposed Development would ‘be in accordance with the policies

and objectives’ of the Development Plan and Garraun UFP. The Commission provided clear

reasons for reaching its Decision. Amongst these reasons was that the Commission did not

consider that the Proposed Development would ‘materially contravene the Garraun Urban

Framework Plan’.

34. With reference to the foregoing, the Commission clearly considered and/or had

regard to the policies of the UFP generally and GUFP 10 more specifically. The Commission’s

Order sets out clear reasons for why it came to the view that the Proposed Development

would not materially contravene the Development Plan. There is no error in the

Commission’s Decision in this respect. Moreover, the assessment of the adequacy of

information is entirely a matter for the Commission in the exercise of its expert planning

function. The principles as they relate to placemaking etc. set out in the Garraun UFP are

qualitative in nature and therefore require the exercise of planning judgment, which is

entitled to curial deference. Such curial deference may only be displaced by irrationality

and/or unreasonableness on the part of the Commission, neither which arises here.

State’s Position

35. Core Ground 1 is not pleaded as against the State Respondents.

Notice Party’s Position

36. The Proposed Development has a totality of 266 car parking spaces (and for the

avoidance of any doubt is not in breach of SPPR3 which is addressed in Core [Grounds] 2

below). Core Ground 1 alleges that the Proposed Development is in material contravention

to a range of provisions of the Development Plan none of which are outlined in the Applicant’s

pleaded case. It appears having regard to this Statement of Case that the Applicant in

reality only advances a complaint regarding GUFP 10.

37. In this regard, it is important to note that while the Council did refuse permission

due to material contravention of other policies, the Council did not find that the Proposed

Development was in material contravention GUFP 10 or the GUFP but only that the

development was contrary to GUFP 10 and the GUFP. By way of preliminary matter, the

Applicant made no submission during the planning process that any material contravention

arose. Furthermore, the Inspector who recommended that permission be refused did not

make any finding of material contravention.

38. The Applicant’s submission repeatedly alleges that the ‘car-borne’ nature of the

Proposed Development amounts to a material contravention of the GUFP. However, no

particulars of what provision is engaged or how the Commission misinterpreted that

provision are set out. The Commission’s conclusion that the Proposed Development is

consistent with the identified Development Plan provisions and GUFP was a permissible

exercise of evaluative planning judgment on the materials before it and has not been

challenged as irrational.

39. Core Ground 1 also pleads complaints regarding a failure of reasons for departing

from the Inspector’s Report but these do not feature in the Applicant’s input into the

Statement of Case and it is presumed that this complaint is not being pursued.

40. All eight of the Development Plan’s provisions identified by the Applicant, when

properly interpreted, involve matters of flexibility, discretion and/or planning judgment, and

are only reviewable on the basis of irrationality (which is not pleaded by the Applicant in this

respect). It is noteworthy that the Applicant, in their submissions, does not engage with

any alleged misinterpretation, on the part of the Commission, of any of these provisions of

the Development Plan.

41. The Commission gave express reasons as to why it found that the Proposed

Development was not contrary to the relevant provisions relied upon by the Applicant and

in particular, Marshall refers to the reasons set out at pages 3, 4 and 6 of the Commission

Order.”

71. The pleaded provisions specifically relied on are: “GUFP 10 and Policy objectives PM1, PM5,

PMG [this is a misprint for PM6 – we know that because the statement of grounds claims that the

council refused permission on the basis of PMG whereas PM6 was referenced], PM8, PM 13 and UL2

and Development Management Standards DM1 in the 2022-2028 plan”, as well as the drawing on

p. 37 of the Garraun Urban Framework Plan (GUFP) section 7.0. The last one is where we will start.

GUFP section 7.0 drawing

72. The real problem for the opposing parties is the drawing in the GUFP section 7.0 at p. 37

setting out how this area and site should be developed.

73. The problem for the opposing parties is that even the most casual comparison between the

UFP map – what is supposed to happen, and the consented project – what did happen, shows

differences that need to be considered.

74. The legend states (relevant to the site in bold):

“KEY FEATURES OF THE FRAMEWORK MASTERPLAN

Land uses

1. Residential (existing and proposed)

2. Garraun Local Centre

3. Employment area

4. Dual use education site

Landscape

5. Garraun EcoPark

6. Amenity/community hub

7. Green spines

8. Retained trees and hedgerows

9. Public open space

10. Potential Coastal Greenway

Access and movement

11. Train station

12. Station car park

13. Vehicular access points

14. Dedicated pedestrian/cycle links and routes

15. Pedestrian/cycle rail crossings

16. Primary street

17. Secondary streets

18. Local Access Only”

75. There are a number of obvious significant differences, specifically:

(i) the east-west street (a phrase evocative of Phillipe Sands’ 2016 book set in

Львів/L’viv) is a continuous street in the plan, but broken into stagger junctions in

the consent;

(ii) the green spine is not replicated in the consent;

(iii) housing is in the form of cells/blocks not specifically envisaged in the plan;

(iv) the frontage is different;

(v) there is no central open space in the plan;

(vi) there is a stronger linear park on the western and northern periphery of the site in

the plan; and

(vii) there is potentially greater connectivity between the east-west street and the R338

at the western end of the site albeit not necessarily for vehicles.

76. As to the complaint that the applicant did not raise this issue, the position is as follows.

77. On 19 July 2024, Padraic Hession & Associates made a submission to the commission on

behalf of 13 named residents, including the applicant – exhibit MMS3 tab 3.

78. It begins on p. 1 with the relevant drawing at section 7.0 of the GUFP – a good start perhaps

for present purposes, but while it goes on to raise certain issues including connectivity, it does not

specifically make a point about material contravention in the above respects.

79. In those circumstances it would be inappropriate to grant relief on a basis going beyond

what would have been apparent objectively to the commission by way of autonomous obligation,

namely what the inspector states as follows (emphasis added):

“8.4 Impact on the Character of the Area

8.4.1 The Planning Authority refused the development due to concerns about the layout of

the site and failure to have regard to the Garraun Urban Framework Plan (UFP) in terms of

connectivity, landscape and placemaking considerations. Similar issues were raised in the

third party objections/ observations. Some revisions have been made to the layout in

support of the appeal, but these do not significantly revise the layout.

8.4.2 Access to the site is to the west of an existing local road and this is generally in

accordance with the Garraun UFP. The UFP also indicates an east to west secondary

street and strong frontage along the southern section of the site facing onto the

R338 coastal road. On the UFP the secondary street connects to the R338 towards

the western part of the site but there is no indication that it provides for a vehicular

link at this point.

8.4.3 The submitted plan, and the revised plan in support of the appeal, indicate that the

east to west street actually consists of three separate streets, with the access road

connecting to the public road also separate. The submitted layout is design in the form

of cells/ blocks and housing is provided within these. In an attempt to provide for traffic

calming the east to west street is divided into smaller sections but the use of staggered

junctions does not allow for a continuous street through the site. The provision of

two storey houses and the staggered nature of the streets, does not provide for

the type of street indicated in the UFP. Similarly, the layout of the development

along the R338 does not provide for a strong frontage. The provision of mostly

two storey houses facing onto a street/ shared street, with landscaping providing

a buffer between these units and the existing public road, does not suggest the

type of layout indicated in Section 7.0 of the UFP.

8.4.4 Considering the very low density of housing in the immediate area of this site, the

proposed development will not have an adverse impact on these units. I am not satisfied

that the layout has adequate regard to the UFP which suggests a more urbanised/higher

density form of development than is the case with the proposed scheme which is of a more

suburban housing development. The UFP promotes the development of an urbanised

development focused on a railway station and proposed adjoining local centre to the north.

The proposed development is designed as a standalone scheme with little indication as to

how it will integrate with adjoining areas. Permitting the submitted layout would set an

undesirable precedent for similar development in the area, especially considering that this

is the first of these sites to be submitted for development.

8.4.5 The UFP indicates a green spine running north south located to the eastern

half of the site. No such provision is made in the submitted layout. An area of open

space is provided towards the centre of the site and also to the south along the R338 and to

the east which forms a buffer with the existing local road and the farm to the east.

8.4.6 I therefore recommend that permission be refused due to the proposed layout and

character of development not demonstrating that it complies with the indicative layout of

Section 7.0 of the Garraun UFP.”

80. And (emphasis added):

“11.2 The subject site is located within lands that form part of the Garraun Urban Framework

Plan (UFP) that forms part of Oranmore, and which is included in Volume 2 of the Galway

County Development Plan 2022 – 2028. The UFP provides an indicative layout in Section

7.0 which indicate an east to west street and a green spine on the subject lands.

An indicative street frontage suggests a development that would be of a greater

urban density/ intensity than that proposed which is suburban in character. The

UFP also indicates a greater level of connectivity than that proposed.”

81. This leaves us with essentially four points of possible material contravention of the drawing

at 7.0 which were before the commission:

(i) no single east-west street;

(ii) no green spine;

(iii) lack of stronger frontage onto the coast road (the inspector does not specify which

provision exactly he is referring to but I am assuming it relates to the fact that the

R338 marks the whole southern boundary of the GUFP area (not just this site) and

so inherently a strong boundary front is implicit – if the commission disagreed with

that they need only have said so when engaging with the text of the plan for the

purposes of the Sherwin test); and

(iv) lack of connectivity (specifically the entrance on to the coast road at the western

end of the site).

82. These four points are adequately pleaded in sub-grounds 17 and 18 albeit that point (iv) is

phrased in terms of a secondary sense of the road not being continuous and/or not integrating with

adjoining areas (emphasis added):

“17. The proposed development is not in accordance with any of the key features

indicated for the site, where the secondary street is a continuous street (17) and not

broken into stagger junctions; the green spine is not replicated in the proposed

development and the condition of the trees is irrelevant as the green spine at (7) is a

matter of design and not about retention of existing trees (the green spine could be subject

to replanting). Furthermore, the vehicular access point to the site was to form part

of a continuous street and not a separate. In addition, the Board did not address and/or

give any other reasons for

- submitted layout is design in the form of cells/ blocks and housing is provided within

these

- the layout of the development along the R338 does not provide for a strong

frontage but instead has a linear park which another departure from the plan

- The proposed development is designed as a standalone scheme with little indication

as to how it will integrate with adjoining areas.

- In addition the UFP does not show a central open space, but a linear park on the

western and northern periphery of the site

- The lack of variation in the character of the houses

18. The Board therefore erred in considering the proposed development was in

accordance with the UFP and/or the Board misinterpreted the framework including

the framework drawing at pg. 38 of the plan and/or failed to take into relevant

consideration and/or gave inadequate reasons. The Board further erred in failing to taken

into account the cumulative differences between the proposed development and

UFP.”

83. The provisions of the decision relevant to these points are as follows (emphasis added):

“It is considered that, subject to compliance with the conditions set out below, the proposed

development would be in accordance with the policies and objectives of the Galway

County Development Plan 2022-2028, in particular the Garraun Urban Framework

Plan (UFP), the Core Strategy and zoning objective. The proposed development would

not materially contravene the current development plan for the area, would not

constitute a traffic hazard by reason of significant additional traffic or traffic movements,

would be in accordance with the Urban design principles of placemaking set out in the Urban

Framework Plan and be in accordance with the proper planning and sustainable development

of the area.

...

The applicant has demonstrated that the proposed access is not a traffic hazard. The

vehicular access to the site is positioned to align with the requirements of the Urban

Framework Plan. This access point was always going to require traffic to turn off the Coast

Road into the local road, the matter of delivering the traffic management zone on the coast

road as indicated on the urban framework plan and the strategic cycle network is a matter

for the local authority to deliver. The site is identified as a phase 1 residential site, to refuse

permission on the basis that the wider infrastructure is not in situ, particularly where the

developer is proposing to provide improved connectivity, would undermine the core strategy

of the development plan. Therefore, the Board did not concur with reason 2 and 3

recommended by the Inspector or reason 2 and 3 of the planning authorities’ reason for

refusal. The Scheme as proposed does not contravene the policies in the development

plan as referenced in the reasons for refusal and addressed above. The Board

considered that the infrastructure proposed on the public road should be delivered with the

first phase of the development and prior to any house being occupied; this could be dealt

with by condition.

Addressing the Inspectors first recommended reason for refusal; the Board considers having

regard to the details submitted both with the application and the appeal, the design and

layout does not materially contravene the Garraun Urban Framework Plan, the

applicant has provided an east west route albeit staggered for reasons to do with

traffic calming. The broken line of trees that are identified as a green spine in the

Urban Framework Plan (Section 7), the arborist drawings accompanying the

application show that the trees have a limited life and no evidence to the contrary

has been provided, the applicant has designed the scheme to retain the trees that

merit retention. The landscape plan clearly shows the significant level of new

planting proposed, this accords with the Urban Framework Plan. The Board noted

the Inspectors concerns regarding internal pedestrian routes, the Board considered that on

balance the applicants rationale set out in the architectural design statements and

the connectivity provided through the open space areas create internal

connections, in addition to the footpaths on the streets, and therefore the scheme

was acceptable.

...

On the wider matter of urban design, placemaking, public realm, layout and design, and

compliance with the parameters of the Urban Framework Plan for this site the Board

considered that the design and layout align with the key features of the UFP,

drawing contained in Section 7, except for the green spine with the reason for not

retaining the totality of the green spine, the condition of the trees, being

acceptable. The Board, therefore, did not concur with the planning authority.”

84. What confuses the discussion is the repeated assertion that there is no material

contravention. We need to be clear that simply asserting this conclusion (let alone repetitively doing

so) cannot constitute proper engagement with the Sherwin factors. That would defeat the whole

purpose of the doctrine. The fact that it was thought necessary to repeat that so much smacks of

legal defensiveness – a better approach would have been to engage with the four-step analysis

discussed above.

85. Taking what Sherwin calls “the first question”, we have to ask what was the decision actually

made by the decision-maker, as to whether or not the proposed application as a matter of

law and fact would materially contravene the development plan.

86. This will be easier to put in tabular form by reference to the four issues put on the table by

the inspector:

Inspector’s Step 1 – was Step 2 – was Step 3 – was Step 4 – was

identified the text there a there a justification

contravention specifically reasoned reasoned assessed by

engaged with decision on decision on reference to

in relation to contravention? materiality? the statutory

the alleged criteria in s.

contravention? 37(2)?

No east-west Yes (plan No. The No No

street provision for commission

east-west street states that an

acknowledged) east-west

“route” is

provided but

does not address

the departure

from the plan by

not having a

single street.

There is an

obvious planning

distinction

between a single

street as a

strong urban

statement and a

“route”

consisting of a

jagged medley

of small streets

typical of a

suburban

development.

The commission

does not address

this.

No green spine Yes (plan Yes (implied that No No

provision for there is

green spine contravention by

acknowledged) reference to fact

that it does not

“align”).

Lack of stronger No No (the No No

frontage onto reasoned

R338 discussion

relates to

whether the

scheme is

“acceptable”).

Possibly the

commission

could have held

that there was

no contravention

but they did not

engage with the

inspector’s

reasoning on

this point.

Lack of No (general No (the No No

connectivity at reference to reasoned

western end connectivity but discussion

no reference to relates to

the GUFP whether the

drawing showing scheme is

access from the “acceptable”)

western end to

the R338)

87. Thus the essential problems with the commission’s decision were:

(i) In respect of two of the inspector’s headings, the commission failed at the first hurdle

to engage with the relevant text of the plan, and went on from there to fail to identify

in a reasoned way whether there were departures from the plan, and to give a

reasoned assessment of the materiality of such departures if found.

(ii) In the case of the east-west street, the commission did address the text of the plan

but did not give a reasoned analysis of whether there was a contravention, simply

using a different word (route as opposed to street) without acknowledging the

obvious planning difference, and moving straight to whether the application was

acceptable i.e., justified.

(iii) In the case of the green spine, which is the clearest problem given the essential

admission of non-conformity with the plan, the commission did identify that the

project did not “align”, but also failed to go on to give a reasoned consideration of

materiality. Saying that the design aligns with the plan except for X implies to a

reasonable non-expert reader that it does not align in respect of X. Such a

reasonably intelligent well-informed non-expert reader (Re XJS Investments Ltd.

1986 WJSC-SC 1935, [1986] I.R. 750, [1987] I.L.R.M. 659 (McCarthy J., nem.

diss.)) would read a statement of non-alignment as equivalent to contravention. We

can also note that the reasons (allegedly defective trees) for the departure do not

accord with the plan insofar as they suggest that the plan is limited to preserving

existing trees.

88. All of these important distinctions were simply collapsed into a general planning judgement

as to the acceptability of the scheme coupled with a defensive unreasoned assertion of lack of

material contravention. Insofar as the decision asserts that the grant of permission does not

materially contravene the plan, there is no basis identified for this assertion. The Sherwin tests

cannot be satisfied by an assertion that permission should be granted, so they can’t be satisfied by

a mere assertion that there is no material contravention. Insofar as the commission gives reasons,

they go to justification/acceptability, not contravention/materiality.

89. As to the notice party’s fallback arguments such as that the spine was in effect being

relocated, that there was alternative planting/ open space, that the frontage/connectivity was

reasonable in the circumstances, that the street staggering was for safety reasons, such matters

also go to justification or at best materiality. Such possible answers don’t airbrush out the problem

that the commission did not approach the matter methodically by first engaging with the text and

then attempting a reasoned analysis of whether there was a contravention and whether it was

material. We are reviewing the decision not re-writing the decision.

90. While I have certainly given serious consideration to the question of discretion this does not

seem to be a case where the applicant should be denied relief. As the Supreme Court emphasised

in Sherwin, the development plan holds a central place in the planning system. It is not entirely

without relevance that this is an institutionally controversial project, gaining no support from the

council or the inspector, thus making the exercise of discretion less compelling than might otherwise

be the case, or put alternatively, adding a legal policy reason for leaning towards a result that would

permit further scrutiny within the planning process itself.

91. In terms of the relevant criteria as set out in caselaw setting the doctrinal bounds of

discretion:

(i) As to the action or inaction of the claimant, the applicant did raise the council’s

concerns in the process albeit in a general way.

(ii) As to the practical value of the remedy, it clearly has a practical value.

(iii) As to the proportionality of certiorari, this is a process issue, granted, but more than

a merely technical one.

(iv) As to the importance of the countervailing legal value being protected by the

impugned decision, the importance of housing is a factor in favour of discretion being

exercised, but that has to be weighed against other factors and was clearly not

enough in Sherwin (a project with coming up to 10 times as many housing units

consented).

(v) As to prejudice or the lack of it to the applicant or anyone else and the impact a

remedy will have on others, there are no reliance interests that will be unfairly

disturbed by certiorari because this project was challenged within time. The

applicant would suffer prejudice by the refusal of relief. The notice party will

obviously be adversely affected by the grant of relief so that carries some weight,

albeit diluted to some extent by the fact that this is not the legally decisive prejudice

that attaches to a reliance interest (where a permission is challenged out of time for

example).

(vi) In terms of the seriousness of the error, the central importance of the development

plan is relevant. Furthermore, refusing certiorari would dilute the practical need for,

and disincentivise the commission from needing to pay due attention to, the

application of the Supreme Court’s decision in Sherwin: see Protect East Meath Ltd.

v. Meath County Council [2026] IESC 1 (Unreported, Supreme Court, 22 January

2026) as to the need to grant effective relief in the event of breach of law.

92. One general contextual matter that could be relevant to any further hypothetical procedures

is that the arborist’s argument that trees are of a limited life seems to have been accepted with

notable readiness by the commission – but all trees are of a limited life. Insofar as there are

comments about defects in the trees to be felled, many trees have defects. Things should not be

rejected merely because they have defects. Not specific to this case, but over-reliance on felling-

friendly rationales can at times veer into the realms of excuse. Reasons can always be found for

felling any tree. That is just a general point as to the need for tree-felling to be closely interrogated

by decision-takers and other process participants, not of course a basis for certiorari in this case.

Without of course suggesting that the arborist’s conclusions here are open to question, there was

nonetheless little interrogation of the developer’s tree health contentions, and perhaps in any revived

process there would be an argument for matters being dealt with at a stage that would allow the

critical issue of tree-felling to be debated more thoroughly. Plus we have the problem that even if

trees in the green spine are in fact terminally defective in some urgent way, the plan is not confined

to existing trees, so defects are nihil ad rem and compliance with the plan could involve planting

new large replacement trees in that area.

93. A further potential issue for discussion in such a hypothetical context (given the pleaded

issues) is the fact that the judgment of the CJEU is awaited in the reasonably near future in Joined

Cases C-27/25, Knocknamona and C-356-25, Massey, so that may be a factor to be considered

procedurally.

Other issues under core ground 1

94. At the level of principle, the commission should have specifically engaged with the text of

each of the other plan provisions said to have been contravened by any of the statutory actors (and

any additional provisions where a weighty case was made in submissions – mere assertion in

submissions would not suffice to trigger such duties).

95. The pleaded provisions other than the GUFP section 7.0 drawing key features are:

(i) GUFP 10 integration;

(ii) PM1 placemaking;

(iii) PM5 sustainable transport;

(iv) PM6 health and well-being;

(v) PM8 character and identity;

(vi) PM13 public realm opportunities;

(vii) UL2 layout and design; and

(viii) DM1 development management standard.

96. I do not need to consider these further in the light of the finding in relation to the GUFP

section 7.0 drawing key features, which is dispositive of the case.

Other core grounds

97. In the light of the foregoing it is not necessary to decide the other grounds going to certiorari.

98. As to declaratory relief, it emerged that the State has not established conservation

objectives:

(i) in respect of the SPA QI regarding the Black-throated Diver (Gavia arctica) [A002];

or

(ii) as regards the SAC QIs [1230] Vegetated sea cliffs of the Atlantic and Baltic coasts

and [8240] Limestone Pavements.

99. However, given that these were not shortcomings that were specifically pleaded (the

applicant instead just making a generalised plea of no transposition), it is neither necessary nor

appropriate to grant a declaration. Nor indeed did the applicant plead that conservation measures

needed to be reduced to specific, accessible, written form – an interesting point which will have to

await another case. But I will record the foregoing problems in case they are not rectified within a

reasonable time in which case more vigorous legal responses may become more attractive should

these issues rear their head in future litigation. Such litigation is not precluded by my making no

order on these issues now.

Summary

100. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that where issues arising rendering it relevant, a planning decision-

taker must engage with the text of the development plan said to have been

contravened, make a reasoned determination in effect as to whether there is a

contravention and whether that is material, and if so, address the question of

material contravention by reference to the applicable legal framework, particularly

s. 37(2) of the 2000 Act where it applies; and

(ii) applying such law to the facts here, the commission did not do that.

Order

101. For the foregoing reasons it is ordered that:

(i) there be an order of certiorari based on relief 1 claimed in the statement of grounds

removing for the purpose of being quashed the order of the first named respondent

(ABP ref. LH07.320747 (planning authority case reference 24/60733), made on 30

January 2025 granting the notice party permission for a large scale residential

development (LRD) comprising of the demolition of the existing shed and associated

structures on site and the construction of 170 no. residential units, 1 no. crèche and

all associated development works including the provision of pedestrian/cyclist

facilities along the R338 public road connecting to Oranmore rail station, 1 no. ESB

substation, 1 no. pumping station, the undergrounding of the existing ESB lines

traversing the site, footpaths, lighting, parking, drainage, bicycle and bin stores and

landscaping/amenity areas, with access via a new entrance on the L-71051 to the

east, at Cartron and Garraun South, Oranmore, County Galway;

(ii) insofar as any claim in relation to relief or any other issue is not being decided by

the court, there be no order in that regard but without prejudice to the parties’ rights

to advance the same or a similar claim or issue in any future proceedings;

(iii) unless any party otherwise applies by way of written legal submissions within 7 days,

the foregoing order be perfected forthwith thereafter on the basis of an order for

costs (including reserved costs and the costs of written submissions) being awarded

to the applicant against the first named respondent, insofar as concerns the relief

against the first named respondent;

(iv) any issue as to the extent of such costs be determined, in default of agreement, by

way of legal costs adjudication;

(v) for the avoidance of doubt, the order for costs shall include an order for the costs of

legal costs adjudication;

(vi) there be no order as to costs in favour of or against any other party;

(vii) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC; and

(viii) the matter be listed on 09:30 on Monday 6 July 2026 to confirm the foregoing.